ARGUMENT OF MR. ROOT 237 



"It is scarcely necessary, but I will read here just one passage from Oppen- 

 heim, upon the question of Interpretation, in order that I may not appear 

 to be submitting these facts as merely my own ideas, but to fortify myself 

 with the name of some authority; though, in truth, I do not think any authority 

 is needed by the Tribunal for such a proposition. 



"Oppenheim says, at page 559: 



"'It must be emphasized that interpretation of treaties is in the first 

 instance a matter of consent between the contracting parties. If they 

 choose a certain interpretation, no other has any basis. It is only when they 

 disagree that an interpretation based on scientific grounds can ask for a 

 hearing; and these scientific grounds can be no other than those provided by 

 jurisprudence.' 



"I read that because it is not quite the same as most municipal laws. I 

 have very httle knowledge of the laws of any coimtry except my own, but I 

 can well iiriagine that municipal law might provide that the construction of 

 a contract was to turn simply upon the language of the contract itself; that 

 you would not be at liberty, as of course in English law you would not be at 

 liberty, to look at all these letters and this correspondence. They would 

 all be completely. and absolutely excluded, and we should have to try to derive 

 what knowledge we could of the intention of the parties (which is the aim 

 of all construction) from the contract itself, together with any custom which 

 might be supposed to form the basis of the contract. But Oppenheim lays 

 down as a rule in international law, and it seems an extremely good rule, 

 that after all, international tribunals, in deaUng with such documents, must 

 first consider: How have the parties interpreted the contract ? Because a 

 great Tribunal like this is free, as I have already said, from many of the tech- 

 nical rules that hamper judicial bodies under national laws; and that certainly 

 is an equitable and sound rule. No matter what the contract says, under 

 a technical construction if the parties have agreed and themselves stated 

 what it is to be taken to mean, that is to be its meaning." 



Both the quotation from Oppenheim and the observations of 

 the Attorney-General seems to be very opposite to the interpreta- 

 tion placed upon this treaty by the parties, to which I have devoted 

 so long a period of explanation and exposition during the past two 

 days. There is a very sound basis for the rule. There is this 

 defect in all human reasoning: that no human reasoner has ever 

 collected, or can ever coUect in his premises, all the facts which may 

 go to form the basis of a just logical deduction. It is impossible 

 for us, at a distance of almost a century, to reproduce for ourselves 

 all those conditions and circumstances which the people of the period 

 when the treaty was made and of the generation which followed, 

 felt, knew without finding them stated in documents or expressed 



