International Arbitration: The States in Action
Through a historical overview of selected arbitration treaties and arbitral decisions, I hope to find evidence of state practice in distinguishing legal from non-legal questions. This is because arbitration is a purely voluntary interaction between two or more states. Therefore, issues that states have been willing to arbitrate before an impartial tribunal should be, by definition, those issues that states view as justiciable.
This latter observation requires an immediate caveat, however. Nothing of a universal nature may be concluded from the ensuing presentation. Not every state has participated in arbitration, and certainly it is possible that states have changed positions over time on what is arbitrable. This latter event is especially possible given the lengthy time line utilized in this chapter.
On the other hand, it is clear that patterns have emerged over the years. Certain topics have consistently been arbitrated over time. Certain key phrases in treaties have gained acceptance or fallen out of favor. As the arbitration process became more commonplace, its subject matter was generally expanded by all. For example, most of the arbitrations that occurred during the nineteenth century happened as a result of an ad hoc decision-making process, each case being treated as a separate entity. Into the twentieth century, it was more commonplace to have general arbitration treaties that placed whole classes of disputes in the arbitrable category. All of this suggests that reaching some concrete conclusions will be possible.
There are many possible paths to dispute resolution provided for in the intercourse between states. Arbitration and adjudication stand apart from other techniques such as negotiation, mediation, and conciliation by virtue of the fact that there is a final judicial decision and the disputants are expected to execute the final decision of the tribunal. In other words, the decision of the tribunal is to be considered legally binding. Arbitration is to be distinguished from