A Century of International Arbitration and Adjudication: Sir Kenneth Keith Reflects on the Evolution of the International Legal System

Article excerpt

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).

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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. …