A century of international arbitration and adjudication: Sir Kenneth Keith reflects on the evolution of the international legal system.

Author:Keith, Kenneth
 
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It is a hundred years since the opening of the Peace Palace at The Hague. Built to house the Permanent Court of Arbitration, it subsequently became the site of the Permanent Court of International Justice and today the International Court of Justice. The courts reflected the development of processes for the peaceful means for the settlement of international disputes and for the clarification and development of international law, both private and public. Since 1923 the Peace Palace has also been a centre for the study of international law. This system has worked with varying degrees of effectiveness for a century but is perhaps due for review.

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On 28 August 1913 the Peace Palace in The Hague was opened in the presence of Queen Wilhelmina. Andrew Carnegie, the Scottish American philanthropist who provided the major funding for the building, recorded in his diary that evening that 'nothing man has yet accomplished equals the substitution for war of judicial decisions founded upon International Law which is slowly, yet surely, to become the cornerstone, so long rejected by the builders, of the grand edifice of Civilisation'.

The palace was built to house the Permanent Court of Arbitration, which was established by the Hague Conventions of 1899 and 1907 for the Peaceful Settlement of Disputes. It was said of that body that it was not permanent, it was not a court and it did not arbitrate. Rather it was a secretariat with a list of possible arbitrators if states in dispute were willing to agree to use its services--as, in fact, fifteen countries did in seventeen cases in the first decade or so of that body's existence.

In 1919-20 the Netherlands, which had been neutral through the Great War, succeeded in having the Permanent Court of International Justice, set up under Article 14 of the Covenant of the League of Nations, housed in the Peace Palace. Finally, a permanent court, with resident judges from Europe, the Americas, China and Japan and with a steady flow of cases, primarily from Europe, came into existence. That court operated until the outbreak of the Second World War. Since 1946, the International Court of Justice, the principal judicial organ of the United Nations, has occupied the palace along with a now very busy Permanent Court of Arbitration, with more than 70 pending cases. That body had almost disappeared from sight from the 1920s to the 1980s.

So far I have mentioned only arbitration and adjudication, but that is to give an incomplete picture even as at 1899 and 1907. The convention under which the Permanent Court of Arbitration was established provided for a raft of means of peaceful settlement: good offices, mediation and international commissions of inquiry as well as arbitration generally, arbitration by the court and summary arbitration. That list can be extended by including negotiation, conciliation (if it differs from mediation) and, of course, adjudication. The longer list is important to remind us that only a small proportion of disputes are resolved by arbitration or adjudication. The other means, particularly negotiation, are much more common. And we should not forget agreeing to disagree (which might be implicit) or formally agreeing not to resolve the dispute (as with territorial claims in Antarctica).

The years 1899 and 1907 provide other important reminders against too narrow a focus simply on arbitration or on methods of peaceful settlement. The 1899 conference was called at the urging of Czar Nicholas II of Russia, who was worried, for good reason, at the rapid growth of the arms race, especially in Europe. He was seeking agreement on controls on spending on armaments. That request led to no more than a mildly-worded resolution, but the conference, along with that of 1907, also adopted another twelve conventions setting out substantive law, notably the Hague Convention concerning Laws and Customs on War, some provisions of which are still considered to be in force as part of customary international law. One important provision which is of continuing effect is the de Martens clause, which, to facilitate the filling of gaps in the written law, declared that 'populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.' The 1907 version requires protection, beyond the law in force, by the principles of humanity and the dictates of the public conscience. This is one example, among many, to be found in national law as well as international law, of general principle underlying or supplementing the particular rules.

Codification need

The point had been taken some decades earlier as major arbitrations began, notably the Alabama in 1870, the Bering Sea in 1893 and British Guiana in 1897, that the law had to be systematically codified and developed if arbitration according to law was to become accepted. It was not only governments that had taken that point. In 1873 the Institut de Droit International and the International Law Association were established, their members being of the opinion that the codification and development of international law were too important to be left to governments. That was a time when a great number of non-governmental organisations were being created, one notable instance being the beginnings of the international Red Cross movement, though the International Committee of the Red Cross, which in its initial form began 150 years ago, I should be careful to note, is not a non-governmental organisation. So the first Geneva Red Cross Convention was adopted in 1864. Other more functional regimes were being established by governments at that time or even earlier with the Central Commission for Navigation on the Rhine (1831) and the Danube Commission (1856), the beginnings of the International Telecommunications Union (1865) along with the Convention for the Protection of Submarine Cables (1884), the Universal Postal Union (1874) and the various unions for the protection of intellectual property beginning in 1883 and, since 1970, consolidated in the World Intellectual Property Organisation.

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