1670 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



Romer says and this is a very valuable statement: 



" No general principles of the positive law of nations can be estab- 

 lished for its " 



That is, the legal condition of servitudes 



u treatment" 



In Romer's opinion 



" because servitudes have to be judged only and solely by the agree- 

 ments with reference to each of them in particular." [Clauss, p. 89.] 



Each servitude to be judged by its own agreement; there must be 

 one, and you cannot go outside that agreement to find out what are 

 the characteristics and consequences of your servitude. You must 

 not do it. This is pinning the United States down to this treaty. 

 What it wants is to get outside of this treaty. It has got nothing in 

 its treaty about a servitude affecting sovereignty, and so it emerges 

 from its treaty, and goes out into international law ; and the moment 

 it gets into international law, it is sent back again to its treaty ; be- 

 cause international law says: "No, No; keep to your agreement." 

 That is what I think Mr. Justice Gray points out, and that is how 

 I really meet his question. It is the United States that is making 

 the attempt to get away from its agreement to write something into 

 it. And the United States turns to Mr. Clauss, and Mr. Clauss, in- 

 stead of blessing the United States, curses the United States ; because 

 he collects all the authorities who say : " Go back to your agreement, 

 and stay there." 



Then Mr. Turner, feeling that, says : " The extent of the servitude 

 right must depend on the terms of the treaty." 



Well, now, it is really summed up by Mr. Clauss, in dealing with 

 what Heffter, Gonner, and H. A. Zacharia say. He sums it up in 

 this way, at p. 206 : 



"it must always be assumed, in case of doubt, that the government of 

 a servient state intended to impose as little a restriction on itself as 

 possible ; that everything that was not expressly -turned over to the 

 foreign state remained subject to the national sovereignty of the 

 servient state. Fundamentally considered, the national sovereignty 

 must be considered in interpreting treaties on state servitudes, to ex- 

 tend over the national territory until such sovereignty is expressly 

 removed." 



Now, "expressly" means in writing: You cannot remove the na- 

 tional sovereignty, you cannot transfer the national sovereignty, until 

 you have got a written document saying you may do it. 



The whole effort of the United States here in fact, it is vitally 

 necessary to its case is to write into .that treaty this doctrine of the 

 transfer of sovereignty. Where is it to get it from ? It tried history 

 first History would not do. That was the theory about inheriting 



