2122 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



tude, necessarily based upon convention, can be maintained by proof 

 of international law. He has stated the right view, in the observa- 

 tion which I have cited. The bearing of whatever there is in this 

 wide field of consideration and exposition by the publicist who have 

 dealt with international law, upon the question before this Tribunal, 

 is that it affords a guide to the construction of the instrument, to the 

 interpretation of the instrument. Indeed, it is an inversion of the 

 truth to suppose that rights such as we are presenting here are based 

 upon rules of international law. They are based upon the treaty. 

 It is an inversion to suppose that all these gentlemen who have writ- 

 ten about servitudes are establishing a basis for servitudes by their 

 references to the analogy of the civil law, of the Roman law. The 

 process is precisely the contrary. In international law, as in the cus- 

 tomary law of municipalities, the internal private law of states, a 

 right is discerned; men by contract, or nations by treaties, create a 

 right; natural and necessary consequences are seen to flow from that 

 right ; and in international law a series of consequences flowing from 

 the creation of a particular class of rights have been explained by 

 publicists by a reference to the analogy of servitudes under the 

 Roman law. The rights are not made to depend upon the analogy; 

 they are explained by the analogy. That is all that an analogy can 

 ever do to elucidate, make clear, carry home to the mind, the true 

 nature of the subject to which the analogy is applied. We are not 

 here, and we never have been here claiming that we are entitled to 

 have our treaty right here held inviolable because it is a right 

 founded upon an analogy to the Roman law of servitudes. We are 

 here saying that this is a right which may be understood under a 

 treaty which must be interpreted in the light of the explanations of 

 this and similar rights during a long series of years, and explanations 

 accepted by the nations of the world, so that they have become a rule 

 of construction for conventions which create similar rights. How 

 are we to find, how are we to prove, in the words of the Attorney- 

 General, what the rule of international law is which is to be applied 

 to the construction of this convention ? We are not without an expo- 

 sition of the method of proof by a very great English judge, and a 

 very great authority in international law. In the case of The Queen 

 v. Keyn, so often cited here, in L. R. 2 Exchequer Division, p. 63, Sir 

 Robert Phillimore, in his very able opinion, in which he based his 

 construction of the statutes of Great Britain, and his view of the 

 legal effect of those statutes very largely upon an application of the 

 rules of construction which had been built up in this way by the 

 common consent of nations, cites a number of authorities which are 

 very pertinent to the question as to the way to prove the rule of con- 

 struction to which the Attorney-General appeals. 



