ARGUMENT OF MR. ROOT 239 



a guide to such a Permanent Court in applying principles and rules 

 of law to the peaceful settlement of international disputes. 



So I do not feel at liberty to pass the subject by, to close my 

 discussion of the first question submitted, without maldng some 

 observations regarding the application of the conclusions reached 

 and the evidence presented by the writers who are cited by Senator 

 Turner, and the relation of those conclusions to the evidence and 

 the question which is here. 



The effect of a rule of international law, if such a rule there be, 

 which may be relevant in any degree to the consideration of a treaty 

 between two independent nations is rather that of a rule of construc- 

 tion than of a statute upon which rights are based. Again I am 

 indebted to the learned Attorney-General for the very Just exposi- 

 tion of that relation. He says [p. 1073, supra] : 



"Of course in dealing with international law in relation to treaties, — a 

 subject with which I have already dealt at such length, — I admitted that 

 international law, when well established and clearly proved, like municipal 

 law, may be taken as the basis of a contract, and may be read into a contract 

 on those matters as to which the contract is silent because, no doubt, the 

 parties were contracting with knowledge of the law." 



In that statement, with which I fully agree, my learned friend 

 demolishes with one blow the ingenious and subtle argument which 

 he had made upon Question i in regard to the futility of the United 

 States undertaking to base any claim of right here against Great 

 Britain upon a rule of international law. The argument had been 

 that international law can be estabHshed only by proof of custom; 

 that a servitude can be estabhshed only by proof of a convention, 

 and that therefore it is impossible that a servitude, necessarily 

 based upon convention, can be maintained by proof of international 

 law. He has stated the right view in the observation which I have 

 cited. The bearing of whatever there is in this wide field of con- 

 sideration and exposition by the pubHcists 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 fights such as we are presenting here are based 

 upon rules of international law. Theyarebasedupon the treaty. It 

 is an inversion to suppose that all these gentlemen who have written 



