ARGUMENT OF MR. ROOT 247 



from performing acts of territorial sovereignty on its own territory for the 

 benefit of the dominant nation." 



The Tribunal will perceive that the essential quaUty of the class 

 of rights regarding which all these writers have spoken is the very 

 thing that is here: an independent state limiting its sovereignty, 

 the power or rightful exercise, so as to permit, and permanently 

 permit, another state itself, or through its citizens, to have the ben- 

 eficial use of the territory of the state that hmits its sovereignty. 



It is with regard to the situation thus created that a rule has 

 grown up; and I repeat that the rule is independent of any process 

 of reasoning that any of these gentlemen go through in explaining 

 it. It is there. It is the custom of nations. It has the consent of 

 nations, by unimpeachable and overwhelming evidence, and must 

 be apphed to the construction of this treaty, which confessedly 

 creates just such a right as the rule appHes to. 



Since long before this treaty was made, the accepted rule of 

 international law has been that the kind of right, or the class of 

 rights which I have been discussing, unlike general trading, and 

 travel, and residence rights, the class of rights which constitute a 

 permanent burden in favor of one state upon the territory of 

 another, protected by a Hmitation of the sovereignty of the bur- 

 dened state, protected by a solemn conventional hmitation keeping 

 away from the right the exercise of that sovereignty, protected by 

 a stipulation which protects the right that constitutes the burden 

 from the exercise of the sovereignty, are not subject to the unre- 

 strained exercise of that sovereignty, are not subject to that exer- 

 cise of its discretion resting in its own will, which is the necessary 

 incident of all sovereignty, and which is claimed here. 



Artopaeus, in 1689, speaking of this kind of right, says: 



"The general principles are the following: The servient territory shall 

 not hamper the dominant one in the exercise of the servitude, or lessen the 

 right by various dispositions." 



That was 129 years before this treaty of 1818 was made. He 

 proceeds: 



"The right created by the servitude shall not be extended beyond the 

 compass expUcitly granted; this does not impede the dominant party from 

 taking the measures necessary for the exercise of its right. For when a 



