Sweden

I shall venture to make a few remarks on this occasion on the international system of arbitration, which is the subject of a report to the current session of this Assembly prepared by the United Nations International Law Commission [A/2163]. 33. I am raising this problem primarily for the reason that in two recent cases the Swedish Government has in vain urged that disputes of a legal nature between Sweden and the Soviet Union be examined by the International Court of Justice. I propose to give you a summary account of these cases. At the outset, however, I wish to stress that, in the view of the Swedish Government, the refusal of one of the parties to an international dispute to accept arbitration or impartial inquiry into disputed facts points out the weakness of that party’s cause. Such refusal is in fact tantamount to a recognition that the statements of the party in question cannot gain credence with others than those who have no access to the facts and evidence presented by the other party. 34. It will be recalled that international arbitration was a demand put forward by the peace movements of the nineteenth century as the primary and most important point in a programme for achieving permanent peace. Arbitration instead of war — that was the watchword in those circles. By arbitration it should be possible to arrive at a just and peaceful solution I of all international disputes. War could be abolished if only the governments of all countries were animated by good will. 35. This peace movement — to use again this modern term — had an important bearing on public thinking in spite of the fact that it rested upon an oversimplified conception of the nature and causes of international conflicts. It gained support from the increased interest which the experts on international law during the nineteenth century began to evince for the principle of arbitration. The jurists did not in general regard arbitration as a universal remedy against war. They did not believe that conflicts between States could be resolved in this way if the conflicts concerned what a party to a dispute considered to be vital interests. On the other hand, they held that the process of arbitration could become extremely valuable as a means of dealing with more limited issues of a legal nature. 36. The first general conference between governments that dealt with the system of arbitration was the so-called Peace Conference at The Hague in 1899. As is well known, the initiative was taken by the Emperor of Russia, Czar Nicholas II. The conference was also to deal, inter alia, with the question of limitation of armaments. 37. The invitation which the Russian Foreign Minister on behalf of the Czar sent out to the governments at the end of 1898 contained statements which are as valid today as they were then. I shall quote some of these sentences: “The maintenance of general peace and a possible reduction of the excessive armaments which weigh upon all nations present themselves, in the existing conditions of the whole world, as the ideal towards which the endeavours of all governments should be directed. “The ever-increasing financial charges strike and paralyse public prosperity at its source; the intellectual and physical strength of the nations, their labour and capital, are for the most part diverted from their natural application and unproductively consumed; hundreds of millions are spent in acquiring terrible engines of destruction, which though today regarded as the last word of science are destined tomorrow to lose all value in consequence of some fresh discovery in the same field. National culture, economic progress, and the production of wealth are either paralysed or perverted in their development. “Moreover, in proportion as the armaments of each Power increase, so do they, less and less attain the object aimed at by the governments. “This conference would be, by the help of God, a happy presage for the century about to open, It would converge into a single powerful force the efforts of all the States which sincerely wish the great conception of universal peace to triumph over the elements of disturbance and discord. It would at the same time cement their agreement by a solemn avowal of the principles of equity and law, upon which repose the security of States and the welfare of peoples.” 38. One of the results of the conference was a collective treaty for the peaceful settlement of international disputes. A court of arbitration was set up in the form of a panel, a list of persons from among whom a judge could be elected when a case arose. The treaty was on a voluntary basis. 39. At a new Hague Conference in 1907, the agreement was revised without any amendment of its fundamental principles, Thus important progress had been made in this field before the emergence of the League of Nations and its Court. 40. When the League of Nations was founded after the First World War, it was assumed in the Covenant that a permanent international court of justice would be set up to deal with international disputes of a legal nature. The Court was set up and started functioning in 1922. But the jurisdiction of that Court was also based upon voluntary agreements among the States. By signing a special protocol, the States were, however, able to give a general undertaking to accept the jurisdiction of the Court in all legal disputes or in some categories of such disputes. 41. At first, only a number of small States were prepared to subscribe to this supplementary undertaking. In particular, the great Powers within the League of Nations seemed at the outset to consider such general undertakings too embarrassing, as limiting their freedom of action. Numerous bilateral arbitration treaties came successively into being. 42. Gradually a change took place in the attitude of some of the great Powers. In the famous Geneva Protocol, which was adopted by the Assembly of the League in 1924 but was never ratified, the principle of arbitration was introduced as a corner-stone of the contemplated new security system. The three cornerstones were: arbitration, security and disarmament. And when subsequently the Geneva Protocol was succeeded by the more: limited Locarno Treaties, the principle of arbitration had gained ground. 43. France and the United Kingdom subsequently accepted compulsory judicial procedure as a general policy. With the United States, not a member of the League, negotiations took place, with a view to its joining the collective agreement represented by the Statute of the Court. There was, however, no question at that time of the United States accepting compulsory jurisdiction. The negotiations did not lead to any result. Japan and the Soviet Union did not sign the protocol on the compulsory jurisdiction of the Court. 44. While the League of Nations was in existence, the result of these developments was certainly not satisfactory, but at any rate several States — among them, two of the great Powers — had accepted the principle of compulsory arbitration in legal disputes. 45. Since the new Court of the United Nations has succeeded the one of the League of Nations, a considerable number of States have made declarations accepting the Court’s compulsory jurisdiction, occasionally with reservations of a more or less far-reaching nature. 46. Of the permanent members of the Security. Council, the Soviet Union is the only one missing from the list of States that have made such a declaration. In the case of China, its declaration accepting compulsory jurisdiction was made in 1946, for a period of five years, remaining valid thereafter, subject, however, to abrogation at six months’ notice. No such notice has been given. Consequently the declaration is still valid. Since, however, the Peking Government has not been recognized by the United Nations, nor by the majority of its Members, taken individually, it, is doubtful whether that Government is bound by the declaration towards States other than those that maintain diplomatic relations with the Peking Government. 47. When studying the list of the thirty-six States which have accepted the Court’s compulsory jurisdiction, we find that among the Members of the United Nations the following States are missing, namely, all the States of the, “Eastern bloc”, six Arab States, three other Asian countries, seven Latin-American States and three European States. 48. The fact that none of the States of the “Eastern bloc” is to be found in the list may indicate that; it is a communist doctrine not to limit one’s own sovereignty by accepting the principle of compulsory arbitration, the application of which might lessen one’s freedom of action in certain cases. Yet the communist States, like other Member States, have collaborated in establishing the International Court of Justice. They have also accepted judicial posts for their citizens when members of the Court have been elected. It might, therefore, be assumed that they do not disapprove of the International Court of Justice as an institution. Indeed, an entirely negative attitude to the International Court of Justice could hardly be reconciled with the provision in Article 36, paragraph 3, of the Charter, in which it is made incumbent upon the Security Council to see to it that “legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court”. 49. Other declarations of principle in the Charter indicate that in the case of legal disputes a procedure adapted to ensure the just and impartial treatment of such issues should be used, Article 33 mentions, among other things, inquiry, arbitration and judicial settlement. Furthermore, in Article 1, mention is made of the purpose of the United Nations to bring about the settlement of international disputes in conformity with the principles of justice and international law. 50. The general public, which cannot follow in detail the precise obligations undertaken by the Member States, has a tendency to overestimate the value of the international legal system of which the very existence of the Court appears to be an expression. Many of us, no doubt, are inclined to put too much faith in the power of words when they are dressed up in solemn declarations of principle or in promises. The confessions of faith in international co-operation, justice and peaceful association among the nations contained in the Charter are rather a programme for the future than aims already realized. When an event occurs showing contempt on the part of Member States for the principles of the Charter, or constituting an obvious violation of the rules of conduct laid down in the Charter, people realize, with surprise and disappointment, that the lofty principles have not been put into practice in the world of reality. 51. As I indicated at the beginning, I am induced to make these remarks primarily owing to some experiences my own country has recently had and which have made a deep impression on the Swedish nation. I shall give a brief account of them. 52. First of all, I would mention the question of the extent of the territorial waters around our coasts, which would seem to be a limited legal issue. In peacetime this question has had a bearing, in the first place, on fishing rights and, to some extent, also on sea and air traffic. In war-time, the rights and obligations of a neutral State have largely been determined, as far as naval and aerial warfare are concerned, by the extent of the territorial waters. 53. As we all know, there is no universally recognized, rule as to the extension of territorial waters. Attempts to reach agreement on an international regulation of these questions have so far proved unsuccessful. The problem is at present on the agenda of the United Nations International Law Commission. During the past few decades, however, several States have substantially extended their previously fixed coastal sea zones. They have done so unilaterally and without regard to the protests of other interested States. Sweden, in particular, is closely affected by the extension of the Soviet Union’s territorial waters in the Baltic to twelve nautical miles. For its own part, Sweden has of old laid claim to four nautical miles. The Soviet Union’s twelve-mile limit has previously been applied by the Soviet Union in the Arctic Ocean and in the Far East. What has now been done is that the same limit has been prescribed for the coasts of the former Baltic Republics. Prior to their incorporation in the Soviet Union, these States had a three-mile or a four-mile limit. To Sweden, the new USSR legislation laying down a twelve-mile limit in the Baltic presents itself as an encroachment on the high seas in which Swedish fishermen formerly had the right to fish. Moreover, traffic on the sea and in the air, in and above these coastal waters, is hampered owing to the strict regulations which the Soviet Union is generally applying to its territorial sea zones and to the air space above them. 54. The Swedish and Danish Governments have both made representations and have also proposed that this issue should be referred to the International Court of Justice, but the proposal has been rejected by the USSR Government. 55. Here, then, is a question concerning international law. In Article 2, paragraph 3, of the Charter of the United Nations — which I have already quoted — all Members are exhorted to “settle their international disputes by peaceful means, in such a manner that international peace and security, and justice, are not endangered”. In our opinion, justice is being highly endangered by a unilateral action of this kind, which curtails the rights Swedish citizens have earlier enjoyed on international waters in the Baltic. 56. The fact that a dispute of this limited scope cannot be brought before the International Court of Justice without the co-operation of the opposite party shows how incomplete the system of international justice unfortunately is. In this connexion I cannot refrain from congratulating the Norwegian and British Governments on having had recourse to the Court for the solution of a similar dispute on territorial waters along the Norwegian coast. At the same time, I would express the hope that consideration of this question by the United Nations International Law Commission will be completed without undue delay and that it will lead to a positive result. 57. The second case I referred to likewise concerns the situation in the Baltic. In June of this year two Swedish military aircraft were shot down when flying over international waters in the Baltic. Both aircraft were unarmed. 58. The first incident occurred on 13 June. We knew nothing of the circumstances in which this aircraft was shot down. The entire crew — eight men — lost their lives. A lifeboat from the aircraft has, however, been found and examined, and it was established _ that the boat had been damaged by splinters while still in the aircraft. Furthermore, the aircraft at regular short intervals reported its position via radio, and we have therefore been able to establish the approximate time at which it was shot down as well as the approximate place. We have reason to believe that there was no aircraft belonging to a third Power in the neighbourhood. Throughout the whole flight, the Swedish aircraft was at a considerable distance from the Soviet coast, flying over international waters, and when its last position was reported it was returning home. 59. A second aircraft was shot down by USSR military aircraft on 16 June while it was searching for survivors from among the crew of the first aircraft. In the second case the crew was rescued, and we have exact details of the circumstances in which the aircraft was being fired upon. This aircraft was also flying over international waters outside the twelve-mile limit claimed by the Soviet Union. 60. In the course of the exchange of notes that took place between the Swedish Government and the Soviet Union Government in connexion with these serious incidents, our protests and our demands were rejected. The USSR Government refuses to accept any responsibility for the fate of the first aircraft and maintains, in regard to the second aircraft, that it flew in over the Soviet frontier. In addition, it alleges that the unarmed Swedish aircraft opened fire. 61. The Swedish Government has proposed that the dispute should be referred to the International Court of justice or, alternatively, to an international committee of inquiry, in accordance with The Hague Convention of 1907. These proposals, however, have so far been rejected. 62. The Swedish Government took note of the statement of the Soviet Union Government that the latter does not question the right of Swedish aircraft to fly over international waters in the Baltic, and it goes without saying that Swedish aircraft will in the future, as hitherto, exercise this right. 63. The Swedish Government has assembled the notes which so far have been exchanged with the USSR Government, and a number of other relevant papers, and has sent this collection of documents to the Secretary-General of the United Nations in order that Members of the United Nations may have an opportunity of forming an opinion as to what has occurred. Unless the other party to the dispute accepts such a procedure, we have no means of obtaining a judgment from the International Court of Justice regarding the facts of the case and the legal consequences which may ensue under international law. We therefore appeal to the public opinion of the world with a presentation of the facts of the case. 64. I need hardly remind the Assembly that during the past few years the communists have launched a tremendous peace offensive, a propaganda campaign in favour of peace. Even in countries which do not have a communist regime, this agitation for peace has been carried on with great intensity. The propaganda is usually confined to extremely general and non-committal statements about the path leading to the goal. It appeals not only to the supporters of communism, but also to the great peace-loving public in all countries, to express an opinion in favour of peace. 65. As I have already pointed out, the demand for arbitration has played a predominant part in earlier peace movements. Although the conception of arbitration as a remedy for all international disputes was not realistic, it nevertheless contained much that was true and of value. Without any doubt an extensive use of a judicial procedure in international disputes would substantially contribute towards reducing friction and preventing disputes from being settled by forcible means. 66. It is highly surprising that the new peace propaganda inspired in communist quarters can entirely disregard the demand of the old peace movement for arbitration, in spite of the fact that the propaganda is also addressed to nations which of old have attached great importance to the concept of arbitration. A recognition of the value of the principle of arbitration and an appeal to the States to accept compulsory judicial procedure in legal disputes would give substance to the peace propaganda. The governments which range themselves behind the new peace propaganda should at any rate show so much good will as not themselves to refuse acceptance of inquiry by international organs into the facts of a dispute. 67. Nearly fifty years ago, the Swiss Government put forward a proposal to the German Government regarding a treaty of arbitration between Switzerland and Germany. Both the German Minister to Berne and the German Secretary of State for Foreign Affairs strongly warned against any such step, using the following argument: the conclusion of a treaty of arbitration with Switzerland was likely to cause the Confederation to lose respect for the great German Reich; Germany must, vis-a-vis Switzerland, bring to bear the natural weight of its power, which would be impossible after the conclusion of a treaty of arbitration. Nor was any treaty concluded at that time. This imperialistic great-Power mentality appears to most of us to be quite antiquated. It is depressing and regrettable that this mentality now seems to have penetrated into the leading quarters of the “Eastern bloc” countries and there found its expression in a negative attitude towards the principle of arbitration as being embarrassing for their policy. 68. Sweden firmly adheres to the fundamental attitude which we adopted in our exchange of notes with the Soviet Union and to which we have given expression in various treaties, namely, that it should be possible, at the request of one of the parties, to submit legal disputes to an impartial judicial organ. 69. Even States of the “Eastern bloc" and other countries which have hitherto rejected the principle of compulsory arbitration, will no doubt ultimately find that the acceptance of that principle is not only required by a sense of justice but would also in the long run be of mutual advantage and would greatly contribute towards improving international relations. Switzerland’s proposal for a treaty of arbitration with the German Reich was turned down fifty years ago, but a day came when the Swiss point of view gained a hearing in the big neighbouring country. The principle of arbitration cannot, in the long run, be put aside.