ARGUMENT OF ELIHU BOOT. 1997 



Arbitration concluded between the United States and Great Britain 

 on the 4th day of April, 1908." 



That general treaty of arbitration appears at p. 11 of the United 

 States Case Appendix, and that is a treaty, which the Tribunal will 

 perceive by article 4, is concluded for a period of five years. T have 

 no reason to doubt that it will be renewed at the expiration of the 

 five years; but, nevertheless, it is a treaty which terminates by its 

 owns terms in three years from this time ; and there might be a ques- 

 tion whether the provisions of article 4 of this Special Agreement, 

 which is an agreement made under the treaty, would survive the 



treaty under which it is made. 



1209 In article 2 of the treaty itself, on p. 11, there is a provision 

 for the Special Agreement. The treaty says: 



" In each individual case the High Contracting Parties, before ap- 

 pealing to the Permanent Court of Arbitration, shall conclude a 

 special Agreement defining clearly the matter in dispute, the scope 

 of the powers of the Arbitrators, and the periods to be fixed for the 

 formation of the Arbitral Tribunal and the several stages of the 

 procedure." 



Then it goes on to say : 



" It is understood that such special agreements on the part of the 

 United States will be made by the President of the United States, by 

 and with the advice and consent of the Senate thereof ; His Majesty's 

 Government reserving the right before concluding a special agree- 

 ment in any matter affecting the interests of a self governing Domin- 

 ion of the British Empire to obtain the concurrence therein of the 

 Government of that Dominion." 



Now, as I sa3 r , there might well be a question, and I think we are 

 bound to consider the possibility of there being a question raised, as 

 to whether the provisions of article 4 of this Special Agreement un- 

 der this treaty would survive the end of that treaty. Do I make that 

 clear ? 



SIR CHARLES FITZPATRICK : Do you think there can be much doubt 

 about that? 



SENATOR ROOT: My opinion is that they do. 



THE PRESIDENT : Your opinion is that they do survive ? 



SENATOR EOOT : My own opinion is that the provisions of article 4 

 constitute, in effect, a new treaty. 



THE PRESIDENT: In article 4 they speak of any differences which 

 may arise in the future, without any limitation of time. That seems 

 to settle one of the points. 



SENATOR ROOT: I think, both because, as the President has said, 

 they expressly relate to any differences which arise in the future, and 

 because they go outside of the function of a compromis, that they 

 constitute in effect a new treaty, and that they would survive the 



