1672 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



JUDGE GRAY : May I, Sir William, ask another question, merely for 

 the benefit of your comment? 



SIR W. KOBSON : Certainly, Sir. I shall be very happy. 



JUDGE GRAY: May not the position of the United States be taken 

 to be this : Not so much an assertion that there is a custom recognised 

 by international law which attaches to a contract and makes part of 

 it, as it does in municipal law, but that, looking to the contract, and 

 confining yourself to its four corners, you find a certain relation 

 established by that contract, or sought to be established; and if it 

 has certain characteristics, attributes, qualities, whatever you may 

 call them, then you may refer to international law, and if you can 

 find that a relation with such characteristics is denominated a servi- 

 tude, then you may apply it to the relation between them ? 



SIR W. ROBSON: Yes. That puts the case for the United States 

 shortly, and in its most powerful form : Namely, that if you find a 

 right conferred with certain characteristics, that is, the three fea- 

 tures to which Mr. Turner referred, and you find in international 

 law that such a right is denominated a servitude, and you find that a 

 servitude has certain consequences attaching to it, when once it is 

 established, then, undoubtedly, you get your case home. I will take 

 up each step : First of all, you do not find a servitude everywhere 

 defined as Mr. Turner has defined it. Secondly, although called a 

 servitude, it is nowhere shown or alleged that it carries with it the 

 consequences in regard to sovereignty that Mr. Turner seeks. That 

 is my next step. Of course there are one or two authorities who say 

 so, but I am dealing with it now, as a matter of general authority, 

 and also as a matter of practice. There is no such consequence at- 

 taching to it in practice. So that I really meet Mr. Justice Gray's 

 observation there by a reference to the facts. 



I agree that if, having once constituted your servitude, you could 

 show that it was recognised by States, and that when recognised by 

 States, it always carried with it these known consequences, even 

 without any stipulation to that effect (which is the present case), 

 then that would be all that the United States would want. But the 

 way in which I say they fail is: They show no such practice. Sec- 

 ondly, if they could, it would not help them in this case at all, be- 

 cause international law says: "Practice will not do. Custom and 

 conduct will not do. You must prove your agreement. A>nd 

 1011 you must show, by your agreement, not only that a right is 

 granted, constituting that which may be called a servitude, 

 but according to international law you must show that your agree- 

 ment attaches to the servitude the consequence for which you con- 

 tend." And this agreement does not do it. And, in fact, I do not 

 think any agreements do. Not only is there no custom apart from 

 treaty, but I do not think there are any treaties or at least very few ; 



