ARGUMENT OF SIB WILLIAM BOBSON. 1669 



tells you that you must not seek to add to the terms of your contract 

 by custom or implication, because it is an essential and fundamental 

 law of servitudes that all the terms shall be in writing. They say 

 again and again that you cannot, by constituting one obligation, or 

 derogating from one sovereign right, go on to infer from that limita- 

 tion of sovereignty any other limitation of sovereignty. You shall 

 not do by inference that which you have not done by contract. 



Just let me draw the attention of the Tribunal to the unanimity of 

 the writers upon this point. I do not think the Tribunal need trouble 

 to go to the references, because we have had them so often. Mr. Tur- 

 ner was obliged to take, naturally, in- opening such a case, a very long 

 time in referring to references, and in giving the references. I have 

 references for every passage to which I refer, and perhaps I may deal 

 with them shortly by stating them. I shall give the references, too, 

 for the sake of the note. I say, therefore, these are the positions that 

 I am on. 



You must put your contract of servitude into writing. That con- 

 tract must be express, explicit. It must be complete. 



Those are the three qualifications: The writing; an express con- 

 tract ; a complete contract. 



SIR CHARLES FITZPATRICK : Of course that does not apply to a 

 servitude as between private individuals? 



SIR W. ROBSON: No. As between private individuals, of course, 

 there may or may not be any writing. But this applies, as Sir 

 Charles points out, to the realm of international law. And I ain 

 going to show by the authorities that they are all agreed on this 

 point. 



SIR CHARLES FITZPATRICK : Yes. 



SIR W. ROBSON : Take, for instance, the first of all the writers who, 

 as Mr. Clauss says, divested the concept of a servitude of its 

 1009 purely municipal character, and raised it from being a matter 

 as between individuals into being a concept applicable as be- 

 tween the mediatised German States not international; he did not 

 say that ; but he said they " cannot be extended beyond the explicit 

 sense of the agreement." He is the first 



THE PRESIDENT : Who is that ? 



SIR W. ROBSON : Engelbrecht ; that is on p. 62 of Clauss. That is 

 an ambiguous sentence. They get more explicit as they go on. 



Martens says : 



"These .... owe their origin .... to agreements only." [Clauss. 

 p. 77.] 







Karl Zacharia, the first of the two Zacharias, says: 



" State servitudes are contractual obligations, and are to be judged 

 as such by the principles in force among nations in general in regard 

 to agreements," [Clauss, p. 82.] 



