Från Trosa till Haag
Tal vid 1968 års Grotius Dinner1
Av ledamoten av Internationella domstolen STURE PETRÉN
Ladies and Gentlemen,
An invitation to speak at The Grotius Dinner inevitably awakens feelings of a twofold nature in the bosom of a Swedish lawyer who has happened to become internationalized for the time being. He has got to look at Grotius both as a distinguished member of the Swedish foreign service in the days of our past greatness and as the giant of learning and founding father of international law.
As to the first aspect, there is no other member of the Swedish foreign service to whom immortality has been guaranteed in the form of an annual dinner preserving his name from oblivion. There are, of course, many ways of becoming immortal. You could, for instance, have your statue erected or a street named after you or a particular dish, that you either invented yourself or are particularly fond of.
But I definitely think that having got your name attached to a whole dinner, an annual dinner, surpasses most other forms of immortality, constituting a really living memorial of a kind most appropriate in the case of Grotius, who has underlined in the introduction to his most famous book, the De jure belli ac pacis, that among those properties which are peculiar to man (as distinguished from animals) is a desire for society — appetitus societatis.
Anyhow, as I just said, my thoughts on this occasion go first to Grotius as a member of the Swedish foreign service. Sweden in the early part of the 17th century, while emerging on the scene of the Thirty Years' war as a growing military power, was still in many other respects what would nowadays be called an underdeveloped country. Amongst other things, she was short of skilled diplomats and, to a certain extent, had to use foreigners for her negotiations with other powers.
The attention of Gustavus Adolphus — who was far from being only a soldier king — had early been drawn to Grotius, then an exile from his native Holland. The Swedish king is even said to have been sleeping with the De jure belli ac pacis under his pillow, an honour I am afraid that not
many leading statesmen of the present day are likely to bestow upon any book of international law.
The esteem in which Gustavus Adolphus held Grotius was shared by his great Chancellor Oxenstierna and so Grotius, although not until after the untimely death of Gustavus Adolphus, was made by Oxenstierna a Councillor of the Swedish Queen Christina and appointed her ambassador to the Court of France, a post in which he remained for ten years.
Grotius thus occupied, during the decisive years of the Thirty Years' war,the most important of Sweden's diplomatic posts. The France of Cardinal Richelieu was Sweden's most powerful ally but also very difficult to deal with, when it came to the negotiation of the conditions of the continued alliance. Grotius, therefore, had no easy task. Besides, it is not certain that the most outstanding of scholars also makes the most successful diplomatic negotiator. Learned professors sometimes have a tendency to look upon too many of their contemporaries as simpletons and to let them feel it. As an author on the subject has put it: "The tactful and skilful management of men, which counts among the first qualities of the diplomats, is rarely to be found in men who are superior in scientific and abstract speculation and the great publicist (i.e. Grotius) was one more example of this incompatibility."
Anyhow, Grotius was Sweden's spokesman in Paris during all those eventful years and what now remains thereof is an impressive series of letters he wrote to Oxenstierna. Letters written in a fluent and elegant Latin, for those were the days when there was only one diplomatic language. These letters reflect all the political rumours of Paris and all the fluctuations of the war in Germany. They still would do as models of drafting for the use of Sweden's fledgling diplomats of today, were their knowledge of Latin more extensive.
To bewilder uninvited readers, Grotius uses in this correspondence fancy denominations for countries and persons referred to. The once secret clue to these names might tell us a deal about Grotius' personal sympathies. England, for instance, is called either Lilium or Seneca, names suggesting beauty and wisdom. That Grotius liked the English is made clear also through more direct statements of his. He also appreciated the Scots, many of whom served in the Swedish army. A certain Ramsay had convinced him, so he writes, that the Scots had as good spirits as the English.
On one occasion, however, Grotius had a violent dispute with the English ambassador in Paris, when this gentleman claimed precedence for his coach over that of Grotius in a procession. There seems to have existed at the French Court, since the reign of Henry III, a regulation giving precedence to the English over the Swedes. When the Marshal of the French Court now invoked it, Grotius protested with violence, as Sweden was a much more ancient kingdom than England. The excitement rose high and swords were drawn by the two ambassadors' retainers, when the French managed to settle the dispute by making the two coaches proceed side by side. Thus, Grotius could inform Oxenstierna that he had preserved the dignity of the kingdom of Sweden and he praises his brave coachman, who refused to follow the first instructions given by the Marshal.
Had Grotius been able now to question, from his Olympus, a Swedish guest at the Grotius Dinner about the present status of the kingdom with the interests of which he so wholeheartedly identified himself, he would
learn, I think to his regret, that Sweden is no longer that Suecia Magna which on his epitaph in Delft, he is boasting of having served as an envoy, but is now a small country, one of the earliest members of that rapidly growing club of European former great powers. He would be more pleased when told that the big conference room of the Foreign Ministry is dominated by a portrait of Oxenstierna and that his followers of today are closely watching the evolution of a number of situations having given rise to disputes between States in various parts of the world.
Arrived at this point of the conversation, Grotius would no doubt forget about the small and peaceful Sweden. Having in his days been an eloquent advocate of the principle of pacific settlement of international disputes by independent arbitration, he would like to know what progress that idea ofhis is making in our times. And what would I answer?
Well, I once happened to serve as president of the Court of Justice with the smallest district in the whole of Sweden, for in the days of the beginning of my career each chartered town in Sweden, however small, had its own Court of first instance and this was the Court of the town of Trosa a few miles south of Stockholm, that counted hardly one thousand inhabitants. The president of such a Town Court was in those bygone days also the head of the local police and Trosa had just one policeman, who thus represented the total executive and peace-preserving force at the disposal of justice in Trosa.
Many years after having presided over the Court of Trosa, the smallest in Sweden, and after some other judicial experiences, I suddenly found myself elected to the International Court of Justice whose jurisdiction is supposed to be universal and as the executive organ of which the Security Council of the United Nations should, in case of need, take action to give effect to the Court's judgments.
Grotius would certainly get very interested in this international legal machinery and the experiences it has yielded and would find out after which flowers or ancient philosophers the Court and the Security Council should properly be designated in his heavenly correspondence with Oxenstierna.
Here, however, I would have to tell Grotius something peculiar and rather alarming. As a matter of fact, sitting in Trosa with my only policeman, I had quite another and more concrete feeling of representing the full majesty of human justice than I have had until now as a member of the world Court. Why? I am afraid that the explanation is not merely that in Trosa I was thirty years younger than today. The reason, no doubt, is that while all the thousand inhabitants of Trosa were compelled to appear before my Court and while my policeman, Mr. Andersson, was at hand to see to it that my judgments were executed, the States of the world are not obliged to refer any disputes to the Court of The Hague, unless they first have undertaken the obligation to do so. This means that much international wrong can take place without the International Court of Justice getting an opportunity of pronouncing itself thereupon.
Of course, the Court still has cases and even important cases to examine, but it cannot be denied that, at present, States do not show any great inclination for submitting disputes to the Court.
In history other Courts have also experienced the absence of parties. The old records of the Court I last presided over in Stockholm mention many cases in which parties had tried in vain to reach the capital sailing
or riding on horseback but did not arrive in time for the sessions, as the wind failed or the horse got tired, but nowadays no such obstacles would prevent parties from reaching The Hague from any part of the world.
Various explanations of the present state of affairs have, however, been suggested. I feel that, here and now, I should just touch upon two of them.
First, it is being said that the negative attitude of many States towards the Court depends upon uncertainty as to what laws the Court is likely to apply in these days of rapid social and economic evolution and changing political structures in many parts of the world. Second, it is hinted that the procedure of the Court is considered, above all, by the developing States, as too lengthy and cumbersome. These two considerations would make States prefer other ways of settling their disputes to adjudication by the International Court of Justice. In some cases they would choose arbitration through judges of their own choice and in others they would prefer a non-judicial settlement or even no immediate solution at all.
As to the length and costs of the procedure at The Hague, I think it should be pointed out that the reason why cases before the Court sometimes last so long is mainly that each of the litigant States asks for long delays in the written procedure. Should the Parties wish a more rapid procedure, there is no reason to believe that they would not get it.
As to the alleged uncertainty about the law which the Court can be expected to apply, the answer is not as simple, in the light of the rapid evolution just mentioned. The point of view in question also seems to require close attention, for the less cases a Court gets to examine, the less opportunities will it have of developing a jurisprudence and the greater will the uncertainty be as to what it will eventually do, should it get a case of a given type.
However, this argument about the uncertainty of the decision to be expected would seem to be directed against most forms of adjudication and it can be argued against it that the more the codification of international law proceeds, for instance through the great diplomatic conferences meeting for such purposes under the auspices of the United Nations, the less reason there will be for uncertainty as to the law that will be applied by international Courts.
The danger would rather be that basic conceptions of international law would develop in different directions in different regions, what could make States inside a region prefer the setting up of regional Courts to the submitting of disputes to the world Court. Such an evolution would, however, leave open the question how to settle interregional disputes.
Facing such regional tendencies, the International Court of Justice must see as its task to preserve the unity of international law. In the past, the Court also has shown itself capable of developing a common spirit making the fulfilling of such a task possible. We must not believe that such is not the situation also today and that this noble tradition would not be continued.
The present reluctance to utilize the machinery of the Court might, however, also be partly explained by the fact that most cases referred to the Court have been of a very complicated nature and therefore bound to last long and give rise to all sorts of procedural complications, what might give the impression that the Court is not suitable for more ordinary cases. This, I would say, is entirely wrong. Minor cases could perfectly well be dealt with by the Court without any unnecessary loss of time.
There is in the British Yearbook for 1925 an article by Sir Cecil Hurst entitled: "Wanted: An International Court of Piepowder." The Courts of Piepowder, it is explained, were the Courts which once exercised jurisdiction over all cases and disputes in the fairs and markets of England. The name piepowder is a corruption of "pied poudré" and it is said to signify either that justice was administered with such speed that there was no time for the suitors to brush the dust from their feet or that the Court dealt with the complaints of wayfarers and chapmen with dusty feet who wandered from mart to mart. In any case, Sir Cecil Hurst thought that there was a need for an international Court of this type, taking care of minor cases. There seems to be no reason why the International Court of Justice would not be able to fulfil such a function, above all if it could take to work in Chambers.
The old provincial law of the Ostrogoths in Sweden begins with the highest matters, church and religion, and ends with provisions about the smallest things, the love life of dogs and the breaking of your neighbour's harrow teeth and the final words of the law, that used to be read out to the people from the beginning to the end, stress that the law is not complete without these provisions about the smallest things. High judges in the national Courts of our countries also deal with such matters. I recently read in an English paper that Lord Denning had given judgment on the illicit love affair of a white miniature poodle, named Springtime Ballyhoo, who got into trouble because a black poodle, Alexis, was living in the same house. Even international law has its dogs and harrow teeth and, as said, there is no reason why they too should not have their day in Court.
This might also have as a result that more States got used to the Court and its procedure and therefore would find it natural to have recourse to it also for major cases, which they are now inclined to withhold.
These last considerations have taken me back to our respective national systems of law and I think this is appropriate here, as every international lawyer is reared in the traditions of the legal profession of his own country. The contribution of the national legal systems to the evolution of international law and to its safeguarding through international Courts therefore also has a personal aspect, the strength of such Courts being derived from the national roots of their members. International law begins at home.
There is no need for underlining the eminent role, in this respect as well, of British law and British legal institutions and to remind you of the long succession of distinguished international lawyers whom England bore and shaped. (The other day, I heard Dr. Simmonds, in a powerful address, tell a Symposium in Brussels that you had better avoid the too often heard expression Anglo-Saxon law, as there is no such thing, Anglo-Saxon law having vanished as the result of the Norman conquest, about which the world at large should have learned by now, as well as about the later influence of Roman law on British law. Not to speak of Scotch law, that should not be forgotten in these days of European integration.)
I therefore consider it a great honour to have now to propose this evening's toast to the British Institute of International and Comparative Law, in which so much dedication to learning and research has produced so impressive results over the years and which has also taken over the noble traditions of the Grotius Society, among them The Grotius Dinner at which we have now the privilege of being guests.