Arbitration Between the United States and Sweden Under Special Agreement of December 17, 1930

CHAPTER ONE

THE TREATY OF 1783 BETWEEN SWEDEN AND THE UNITED STATES

The claim of the Kingdom of Sweden in the present case is predicated upon alleged violations of rights secured to it, and to its nationals, by the Treaty of Amity and Commerce signed at Paris on April 3, 1783, as revived by a later treaty of July 4, 1827. The existence and extent of such rights must be determined by the Tribunal from the specific terms of the treaty in accordance with accepted canons of interpretation. But whether positively expressed in treaties or tacitly accepted by usage, modern rules of international law are the product of customs and usages found fairly early in history. Such origins are of importance in showing that these rules are not arbitrary pronouncements or mere philosophical ideals, but the definite response to an inevitable international need whenever two or more nations have peaceful, commercial dealings. Moreover, the rules and treaties concerning the rights of neutral trade, involved in the present arbitration, were among the earliest to be formulated and sanctioned by civilized nations. Consequently, for an adequate understanding of the terms of the Treaty of April 3, 1783, between the King of Sweden and the then "thirteen United States of North America," it is desirable briefly to trace the development of and to set forth the rules then currently accepted by nations for the protection of neutral commerce in time of war.

THE DEVELOPMENT OF NEUTRAL RIGHTS AT SEA PRIOR TO 1783.

Commerce, particularly maritime commerce, cannot long be carried on without its participants agreeing upon some rules for its protection and regulation. Once the attempt is made to formulate such rules for use during wartime, a dichotomy inherent in the situation, is found to exist-neutral rights as opposed to belligerent rights, or, conversely, neutral duties as opposed to belligerent duties. A

1 The Treaty of 1783 terminated by its own limitation in 1796; but the articles involved in the present arbitration were revived by the Treaty of September 4, 1816, and by Article XVII of the Treaty of July 4, 1827. They expired on February 4, 1919. See APPENDIX TO THE CASE OF THE KINGDOM OF SWEDEN, pp. 6, 18, notes, 27.

CHAPTER ONE

THE TREATY OF 1783 BETWEEN SWEDEN AND THE UNITED STATES

The claim of the Kingdom of Sweden in the present case is predicated upon alleged violations of rights secured to it, and to its nationals, by the Treaty of Amity and Commerce signed at Paris on April 3, 1783, as revived by a later treaty of July 4, 1827.1 The existence and extent of such rights must be determined by the Tribunal from the specific terms of the treaty in accordance with accepted canons of interpretation. But whether positively expressed in treaties or tacitly accepted by usage, modern rules of international law are the product of customs and usages found fairly early in history. Such origins are of importance in showing that these rules are not arbitrary pronouncements or mere philosophical ideals, but the definite response to an inevitable international need whenever two or more nations have peaceful, commercial dealings. Moreover, the rules and treaties concerning the rights of neutral trade, involved in the present arbitration, were among the earliest to be formulated and sanctioned by civilized nations. Consequently, for an adequate understanding of the terms of the Treaty of April 3, 1783, between the King of Sweden and the then "thirteen United States of North America," it is desirable briefly to trace the development of and to set forth the rules then currently accepted by nations for the protection of neutral commerce in time of war.

THE DEVELOPMENT OF NEUTRAL RIGHTS AT SEA PRIOR TO 1783.

The Treaty of 1783 terminated by its own limitation in 1796; but the articles involved in the present arbitration were revived by the Treaty of September 4, 1816, and by Article XVII of the Treaty of July 4, 1827. They expired on February 4, 1919. See APPENDIX TO THE CASE OF THE KINGDOM OF SWEDEN, pp. 6, 18, notes, 27.

general history of neutral rights, no matter how brief, illustrates that such rules as have come to be accepted are largely the result of ad hoc compromises between these conflicting rights and duties of belligerents and neutrals. In the history of the western world,' the rights of neutrals at sea very early came to play an important role. This was due, in part, to the importance of maritime commerce during the great naval wars which marked the major colonizations of the seventeenth and eighteenth centuries, and, in part, to the fact that the theory of neutral rights found its first practical application in the form of an immunity from capture accorded, in time of war, to the ships and goods of non-belligerents on the high seas.

Even prior to the Treaty of Westphalia, in the year 1648, which is generally taken as the beginning of modern international law, the rule that neutral ships and goods were exempt from capture and detention had been accepted by the commercial city states and

2 Neutral duties, as such, are not involved in the present controversy. It is significant to note, however, that from its earliest history the United States had taken the lead in insisting that its subjects, and in demanding that other nations require their subjects to, refrain from acts tending to impair its strict neutrality. See Hall, International Law (7th ed., Oxford, 1917) pp. 616-632; Fenwick, The Neutrality Laws of the United States (Baltimore, 1912) cc. I, II; Jessup, American Neutrality and International Police (Boston, 1928) pp. 7-15. Compare 1 Stat. 381; 59 Geo. III, c. 69; Walker, The Science of International Law (London, 1893) c. VII. See also, Papers Relating to the Treaty of Washington of 1872.

8 Compare Wheaton, International Law (Atlays ed. London, 1904), §§ 412-537; Calvo, Manuel de Droit International (2d ed., Paris, 1884) pp. 5-29, where the views of the principal early writers are set forth. See also Hall, The Law of Naval Warfare (London, 1921) c. V; Stowell and Munroe, International Cases (New York, 1916) Vol. II, pp. 267-73; Pyke, The Law of Contraband of War (Oxford, 1915) pp. 1-10.

Even in ancient India the fundamental proposition was admitted that a neutral had a right to continue his trade in ordinary merchandise despite the existence of war. This liberty was restricted by the right of the belligerent to interrupt the delivery of "eontraband" goods to his enemy. Under this head were included goods that went to increase the strength of the enemy," and specifically such things as food, fodder and provisions. Weapons and munitions of war were similarly included. Viswanatha, International Law in Ancient India (Bombay, 1925) c. X, p. 197. Accurately reflecting the later development, it was at this early period also recognized that destination was another essential element of contraband. In other words, not all goods could be seized by a belligerent as being of contraband character, but only such of those goods as might be destined for an enemy state. Thus the neutral retained the liberty to trade even in munitions of war, so long as those articles were destined to another neutral. Jessup, American Neutrality and International Police (Boston, 1928) p. 16. In the Greek and Roman worlds, however, there seems to have been little trace of anything approximating a law of neutrality. Phillipson, The International Law and Customs of Ancient Greece and Rome (London, 1911) Vol. II, pp. 304-314.

5 Eagleton, The Responsibility of States In International Law (New York, 1928) pp. 6-7; Davis, The Elements of International Law (London, 1908) p. 15, et seq.; Wheaton, History of the Law of Nations (New York, 1845) pp. 69-71. This period coincides with the appearance in 1625 of Grotius' great work, De Jure Belli ac Pacis.

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