DEVELOPMENTS IN DISPUTE SETTLEMENT: INTER-STATE ARBITRATION SINCE 1945 CHRISTINE GRAY and BENEDICT KINGSBURY Reprinted from ‘THE BRITISH YEAR BOOK OF INTERNATIONAL LAW 1992DEVELOPMENTS IN DISPUTE SETTLEMENT: INTER-STATE ARBITRATION SINCE ro45* By cunistive Gray and BENEDICT KINGSBURY} 1, InrRopuction Promoting and securing peaceful settlement of disputes remains one of the most important—and most difficult—objectives of the international legal sys- tem, While Article 33 of the UN Charter lists as methods of peaceful settle- ment negotiation, inquiry, good offices, mediation, conciliation, arbitration and judicial settlement, this list is not exhaustive, and suggests a precision in classification which isbelied by the complexity of disputesettlement practice. Arbitration as a method of inter-State dispute settlement in the modern period is often treated as having been inaugurated in proceedings under the Jay Treaty of 1794." In the subsequent evolution of practice concerning inter-State ‘arbitration’ a number of different interpretations of the term are discernible. The predominant approach is exemplified by the 1899 Hague Convention for the Pacific Settlement of International Disputes: "In ques- tions of a legal nature, and especially in the interpretation or application of International Conventions, arbitration is recognized by the Signatory Powers as the most effective and at the same time the most equitable means. of settling disputes which diplomacy has failed to settle’. A comparable view was expressed by the International Law Commission in 1953, deserib- ing arbitration as‘a procedure for the settlement of disputes between States by a binding award on the basis of law and as the result of an undertaking voluntarily accepted’, and adding that ‘the arbitrators chosen should be either freely selected by the parties or, at least, . . . the parties should have + © Christine Gray and Henediot Kingrbary 4. Faculty of Lave, Univesity of Oxford, and Ds 00, eespectvely. The suthors wh to Usa the participant ata seminar oni held at the Mas Planck Tne {ue for International and Conrparative Lavi Heidelberg, for ver helpful comments on earlier drat of thie atte, Peg. Stat, Survey of ntemationl Abita 1082 (1990): Lapadlle an Politi, Recueil tes anitragesinternatimaus (1995), ka Fontaine, Pavitt intemrationale (2903) Tis sometimes ‘overloked that there as an appreciable amunt af arbitral practice in early modern Europ, long alter the welltnosen arbitrations of the aneiene Greeks: John Jay did not develop his ideas iy 2 eacuu, example, in Droit des gent (6758), Book I, 5339, pretents a rcognisable modern vs of aubitratian,chough ne examples are given beyond a general reference to Sivies practice, Note too the Proposal male by Charles V1 in #726 for aebieation ofthe Ausr-Duteh dispute concerning the stii- fie of the Octende Company-aiseusced by Reciotsea, The Jay ‘reay and. all That Some Remasks on the Role of bitration in Exropean Modern History and its "Reviea” in e794 i (ed), Inermational Arbitration: Past and Prospects (agpo), pp. 204-10. See generally Veril, Ine atone! Law en Historical Perspective, v3. 3 (3978), PB. 71-3a DEVELOPMENTS IN DISPUTE SETTLEMENT: been given the opportunity of a free choice of arbitrators’.* The focus is thus on legal disputes. Arbitration is seen as an equitable means of settle- ment, but its object is the settlement of disputes by the application of legal rules, principles, and techniques, and not simply to reach an ‘equitable’ result. An alternative view, that arbitration is a means for settling non-legal disputes not suitable for judicial settlement, has been enshrined in a number of treaties, including the 1957 European Convention for the Peace- ful Settlement of Disputes, but has received very little support in actual arbitral practice. In the post-1945 period, arbitration is best understood as a locus of activity rather than a highly precise category, recognized as distinct in prac- tice but not separated by clear lines from adjudication on the one side anc conciliation on the other. Thus, for instance, while conciliation is tradition ally distinguished from arbitration on the basis that the parties are not obliged to accept the recommendations of a conciliation commission, treaty provisions occasionally provide that such recommendations are binding? or at least must be considered in good faith. The United Nations Secretary- General in the 1986 Rainbow Warrior case* between New Zealand and France functioned as both coneiliator and arbitrator in producing a ruling which was ‘equitable and principled’, whieh ‘respect[ed] and reconeil{ed]" the differing positions of the parties, which was informed by diplomatic consultations the Secretary-General had undertaken with each party separ- ately, which did not contain explicit legal reasoning, and which the parties had agreed in advance to accept as binding. Arbitral tribunals have on several occasions been asked to produce non-binding opinions on legal dis- putes,? of to attempt to achieve friendly settlement of a dispute in the man- ner of a mediator or concitiator before issuing a binding ruling.® The substantive differences between arbitration and judicial settlement have become less precise; the IC] has developed the chambers procedure so as to be comparable in many respects to the procedure of an ad hoc arbitral tribunal, although institutional and other differences remain important. + Yearbook ofthe International Lave Commission, 1953, vl. 2, 9.202, See ako ticle 370 the 1997 Hagae Convention See wenealy LN Handbook on the Peace Setlement of Disputes, ised iiily a Report ofthe ‘special Commitice on the Charter ef the United Nasions and on the Strengthening ofthe Hole of tie Ghgaization, UN Doe, 26t33 e900), xp. chs I, sections E-H, Sevalso Merville, atemational Di. pute Setloment (and ein, 4998), eh. 2-8 "See, exe, Article 19/3) of the 108i Treaty Establishing the Organiea States itoratonal Ligal Mates, 39 (2984), p 356. ‘Sees the os Vienna Convention forthe Protection ofthe Ozone Layer, Znuemaional Legel Materiais, 26 (1987), 1329. A ILR a5 Beste. HalyliS cir Sorices (2985), Reports of Intemational Artal candi, vol 16, p. 885 anid the aquest for an adver opinion on the subject of reprisals in USiFrance Air Serves (9 ibid val 18, p. 420 Sees the Taba arbitration (2988), 80 ILR 354, in whieh pursuant tothe compromis chara comprising three members of the tribunal (e ational from each State and a non-national) attempted {onseeceaally) to develop 2 tesorumendatin to the pies on setlement ofthe dispute pre to the heaving of oral arguments by the bal mn of Basten CaribbeanINTER-STATE ARBITRATION SINCE 1945 ~~ One area of possible difference; to be considered in a preliminary way in the inal section of this article, concerns the relative importance of arbitral awards and of International Court judgments and opinions in the develop- ment of rules and principles of international lav. Arbitration as a means of settlement offers considerable flexibility as to the legal status of the parties. The commercial arbitrations between States and non-State entities are well known, as are more unusual arbitrations such as that held in Geneva between Greenpeace and France. The Fran- ce-UK Channel Tunnel Treaty of 29 July 1987 takes advantage of this flex ibility in providing for the reference to arbitral tribunals of disputes between (i) States; (ii) States and concessionaires; and (iii) concession aires.? This article will deal only with inter-State arbitration. In light of the continued importance of arbitration in the peaceful settle- ment of disputes, the purposes of this article are to examine the principal features of inter-State arbitration in the period since 1945 (section [1), to assess the extent to which arbitration is distinct from conciliation and judicial settlement (section TI), and to evaluate the impact of arbitral decisions on the development of public international law (section 1V). IL. Inver-Srare Agsiraation since Worp War I Overview? lay? What sort of arbitral practice has there been since the Second World War? One thing is immedi- ately obvious: that arbitration is much less common since the Second World War than it was before. Stuyt in his Survey of International Arbi- trations 1794-1989" lists approximately 178 inter-State arbitrations © "The Iran-US Chaim Tribunal is empowered to resolve a limited cange of lame which ate eb stance inter-State claims noe ivolving pevate parties, nadiion co the much larger number of laine paused on behalf of nationale ofthe veopective States. The UN Compensation Comnissin estab Tished by the Security Council addses eraio claims arising fem the 1932-08 Gall esi il deal primarily with diplomatie protection cans, although interesting questions tay arze as to means for {hsuring that moners pa setualy reach the individuals who have sullered les and fe posible chat ‘ery large claim wl be presented on Beal! of States themacves "2 The aubjectof contemporary inter. Stae arbitration has atrcted periodic intrest since 1045: 86, .., Hudson, intematinal Tribunals Post nd Future (x94), and Carat, The Process of fae tational dvbtration (1946); the unsuccessful draft convention on arbitral procure produced by the TLC (c953): Simpson and Fox, fnternanina Srbiraion (2959); ‘The Cela Note of the Secreiaty General ofthe Permanent Court of Arbitration’ neican Journal of International Lat, 34 (¢960), 1p. 9335 Report of the UN SecretarConerel onthe Work of the Organization, UN Dio, 8/8098 ( Von Mangold, “Aebitration and Conciliation, in Judicial Secement of International Ditpides (tox Planck Tasttue, 197); a spat of articles atthe end of dhe 197s, particularly Decaux,'Pratgue fan faite ea mites ducbiteage, Annuaire francais de drat intomational, 24 (1978), 9- 43% Calleeh, snide Tobitageinterdstique’, ibid. 25 (1979), 9. std Jobson, "Tnteratonal Arbitration Back in Favour”, Yearbook of World fairs, 1980, p- 305% and moi recently the ne elton of Stuy, Siazes of titernationalsvbirations 1794-1089 (1092) (becinafter Saye), and Cousiat-Coustere Eisemann (eds). Repertory of Inlernatonel biel Junepmdence (989-91). The continsed publ catioms ofthe ternational Lawe Reports ai the Reports of Iuernationalcbival awards are abo of ‘ental importance "O'See previous note. While comprchensiv, this work cannot be garded as deiiive100 DEVELOPMENTS IN DISPUTE SETTLEMENT: between r900and 1945."* In marked contrast, the same number of years after the Second World War produced only 43 arbitrations.? The vast inerease in the number of States and the corresponding increase in international trans- actions is accompanied by a decline in the number of arbitrations. Another very striking contrast, noted by several commentators, is that between the ‘astoundingly high number of arbitration and conciliation treaties concluded since the beginning of this century’ and the ‘astound- ingly low’ frequency of their application to actual disputes. "* "There are a few very useful collections of treaty provisions for the pacific settlement of international disputes'? and several studies of these pro- visions." The marked disparity between the hundreds of treaty provisions for inter-State arbitration and the actual resort to arbitration by States seems to point to the obvious conclusion that the treaty provisions are rarely used. But the conclusion that they ate superfluous should be resisted. ‘One very important function of these treaties is to show the commitment of States to the peaceful settlement of disputes. And it has been argued that the possibility of arbitration provided by the agreement may itself help to motivate parties to settle their disputes by other peaceful means."7 ‘The strength of this argument is difficult to assess: as with suggested explanations for the reluctance of States to resort to arbitration,"* there is, ‘no way to test the apparently plausible suggestions about the motivations of States. As regards the clear reluctance of States to use arbitration, writers “these figures ae based on the date of the abard rather than that of the aebitracon ageeement. The ‘numbers ars misieading in that cach tbunal counts st one, whether it made tens or hundreds of Aecisions or enly one. ‘Shs number can be seduced even further because some of the ibunal didnot produce, or have sett produce any award, Se>Stuye, No. 421, Groat Arta! Sarai Arabia; No. 23, Prance Tunisia, Nov tis, France\Great Britain, The award (a No. 450, ConadaiFrance, was produced on 10 June toga faternaional Legal Motorals,3t (2992), 2449, andthe avard in No. gsi. Great Britain United Stater, was produced on 30 November 1 1H Von Alangolde, Arbitration and Conciliation Treat’ in Broad (ed), Bncyelopedia of Public aternational La, 0. £ (2980), 28 S"Sce, eg. Oslers-Prahm and Waller, Dispute Setlement in Public International Lase—Texts cand Material (2984); United Nationa, A Surzey of Treaty Provisions forthe Pacific Setilement of International Disputes 1949-1963 (196). 'S'Sohn, "The Function of International Arbitration Today Recueil des cour, 108 (1963-1, pp- grins; Sohn, Setlement of Disputes Relating tothe Interpretation and Application of Teetis’, ao «go (297i), pps 195-2543 Von Mango, le, ce above (a. 13); Wahler, “Arbitration Causes tie an Bernhardt (.),Bneelopedia of Public International Law, vol. 1 (0981), P- 37 hice, loc. cit above (n. 10), ps 37. An intersting recent example aro under obe ofthe network of Bayan ities, hich have been the abject fa good deal of condeseending scepticism over the years (See, eg, Zitmern, The League of Nations andthe Rule of Lat 19181938 (939) PRs 18 {E) Hloweer, the ela the United States against Chile a 1989 concerning the deaths Her and Bott was forthe convening of the Commission provided foe inthe 1934 teas, and it 3 sree to convene the Commission to determine the amount of compensation payable by Chile asi Hib Stny bad been esablsheds though the payment would be ex graria. Iwas ageed thatthe decision of the Commission would be binding. See Chile-Uaited States: Agreement t Settle Dispute Concerning Compensation for the Deathe of Lstlier and Molt fnernational Legel Materials, 30 (109!) fs 2 snd the Commission's report, ibid 32 (2992), p. 2 ta Jamuaey 1992 Chile agreed ts pay 82,61 ieuinided betieen relatives of tote killed 7a Yon Manga, ost, above (m2).INTER-STATE ARBITRATION SINCE 1045 tor have suggested various possible explanations: that States are not willing to risk submitting important disputes to arbitration; nor, conversely, will th go to the trouble and expense of submitting unimportant disputes to ar tration; it is likely that if one party does not want to go to arbitration the other will not insist on this. But, as Jennings remarked with regard to the once limited use of the International Court of Justice, ‘as long as few governments in practice resort to the Court, almost any explanation will seem to be borne out hy the facts’."? Studies of the vast mass of treaty provisions on inter-State arbitration”? show certain clear developments since the 1794 Jay Treaty. From the end of the nineteenth century the early bilateral provisions for arbitration were supplemented by multilateral treaties—as a consequence of the general growth in multilateral treaty-meking. At the same time the early provisions for ad hoc arbitration were followed by treaties establishing institutional arbitration. The gradual increase in general arbitration treaties in the nine~ teenth century, culminating in the 1899 and 1907 Hague Conventions, hi tailed off. Since the Second World War general arbitration treaties such as the 1948 Pact of Bogot and the 1957 European Convention for the Peace- ful Settlement of Disputes are exceptional,"* whereas arbitration clauses in treaties dealing with other matters have continued to increase. Attempts to strengthen arbitration clauses and agreements, to produce the perfect, binding, inescapable commitment to arbitration, continued after the Hague Conventions but have had very little impact in practice.* The Inter national Law Commission originally intended to produce a draft Conven- tion on Arbitral Procedure, but its provisions proved unacceptable to States, because of their attempt to impose stronger obligations on States, and they were downgraded to the status of ‘Model Rules’ and have never been adopted as such in practice.” ‘The developments in treaty practice—from bilateral to multilateral, from ad hoc to institutional arbitration—have not been matched by analogous changes in actual arbitral practice. The contrast between the very substan- tial amount of treaty provision for arbitration and the very small number of actual arbitral awards** suggests that attempts to prescribe how States ought to use arbitration will be vain, It is more important to consider how fenwings, in Judicial Settlement of faternatin. P36. Dispues (Mas Plane lostitte, #974), P35 Sec the works cited a. 19sbore "Both theneteain provide fr other meas of peaetlsttement, in adliion to arbiteation, *% Perhaps the 1982 Law of the Sea Convention arangsmeats will cently prove tobe a eacep tion. The to9r Peeccol on Environmental Protection to the Aneartic Treaty, mermational Legal Materials 30 (299%), p. 1385; 8 interetn providing for cmulaory and binding depute settlement by ether the TC} or an shir anal the powers ofthe abil tral extend to esing provisional * Schlochaue, ‘Arbitration’ in Bernard (ed), Encelpediaof Public uervatonal Lae, vol, + (4981), p. 13 app. 25-5; Von Mangold, lc, st above (a. 10), at p. 439, For the text of the "Model Deaton Arbiea Proce’, ace Yearboak of the International Lave Comision, 1938, Yl. 2, P 3 * Of cours the smal muberofarbital aad doesnot signify that the ces tvolved ae unin portant, ofthat the awards themselves ate legally insignificant102 DEVELOPMENTS IN DISPUTE States have used arbitration in practice and to decide whether any deduc tions may be made as regards the future of arbitration. ‘This section began with a reference to the decline in the number of inter- State arbitrations since the Second World War. Any such attempt to quan- tify inter-State arbitration necessarily raises the question what is to be counted. If Stuyt’s list of the post-Second World War arbitrations is taken as the convenient starting point, some doubts arise about those tribunals that did not apply public international law.*8 ‘This question of the actual (or the proper) scope of international arbitration is a controversial one, In international law, unlike municipal law, arbitration was the norm until the twentieth century; that is, it preceded judicial settlement. The creation of the Permanent Court of International Justice gave rise to new questions about the role of arbitration. A significant number of treaties made after the creation of the Permanent Court of International Justice distinguish between legal and non-legal dis- putes; the former are to be referred to the Court, the latter to arbitration and other methods of settlement. The distinction seems clear and logical and certain writers apparently accepted it.27 But this simple dichotomy made in many arbitration treaties has not been reflected in arbitral practice. ‘The legal/non-legal distinction has been attacked.*® Other writers insist or the legal nature of arbitration.”? ‘As Hersch Lauterpacht observed, there is an interesting relation betweer this legal/non-legal distinction and exclusion clauses.* The debate on the proper scope of international arbitration had carlier focused on exclusior clauses restricting the scope of tribunals’ jurisdiction. Clauses excluding from arbitration matters affecting honour, vital interests and independence received extensive discussion.>* Such clauses came to be replaced by those excluding matters of domestic jurisdiction.’* Because almost all arbitratior ('TLEMENT: % Sco Stayt, No. 412; UN Tibunal on Evitea: No. 413, UN Tribunal on Libya; No. 414, Bel sunaiNethertands; No. 436, PranceiSpain, Discussion by Verll, op. cite above (nt). at ptt ff nd Vor Mangolt,le-sitabove (a. 1), 2p. 424-8 “Soe Sok, ‘The Function of International Abiration Today, le cit. above (a. £6) and Sohn in Judicial Setlement of fnterational Dispter (S974) 8 pP. 47-2 ‘See, eg, Soba, “The Punction of International Arbitration Today’, le. cit. above (a. 16) Hos ever, Sohn accepa that ceriin legal claptes should stl be relered to abitaton-—thoseinvolsing Jaege groups of claims, minor problems ad those invalving non-State parties. Otherwise be express the hope tha legal disputes would be submited tothe Toernationat Court of Justice “Arbivatton wil have took for other areas if it vats to retain ts vitality and to continue ts oltre tation’ (p86) Sec, eg, Laterpach, The Function of Law inthe Ineriatonal Community (0939) » Von Mavgldt adopts 2 narrow conception af aebietion and includes ony thse based on ater ational floes above {n, 10) Vera, ap. cit above (at), ala takes this view. Por Scheuner ‘the wishes ofthe parties determine whether arbitration it be legal or no legal: Jil Setlerento Incermatonal Disputes (974), a p14 " Lauterpacht, 9p. it. above (2.28), at 9.36 » See Parwsch, "Vita In raliatde (ed), Eneycogedia of Public International Late ol, 20 (2988), p- 526; Walton, Relervation Clauses in Agreements of Obligatory Arbitration’ met can Journal of Iniernatonal Lace, 23 (1929), p68; Wehbe, “Restrictive Clauses in Tnterations Abitration Teeaties bid. 7 (1913). 3 See Lauterpacht, op. ct. above (9,25); Pcsch, le. cit. above (a. 31; and Wiban, loc. et shove (a. 32)INTER-STATE ARBITRATION SINCE 1ogs 193 tribunals have in practice been ad hoc tribunals established by special agreement, these exclusion clauses more or less completely escaped any n by tribunals. n treaty practice is clear—from exclusion clauses to the legal/ non-legal distinction, But this shift did not lead to any change in State prac- tice as regards arbitration—and it would have been a very important change. Although some nineteenth- and early twentieth-century tribunals were requited to apply considerations of justice and equity as well as, or instead of, international law, many others applied international lav. ‘The treaty division between legal disputes to be referred to the Court and non- legal disputes to be referred to arbitration is certainly not reflected in post- Second World War arbitral practice. (Indeed, with the decline in both the conclusion and the invocation of the once-popular general arbitration treaty, this type of division of disputes has largely disappeared.) If anything there has been an increase in the legal character of arbitration. The ad hoc agreements that have in fact established arbitration tribunals since the war +helmingly refer to international law as the applicable law.>" An inter- esting development is that whereas a considerable proportion of the earlier post-War agreements did not include an express choice of law clause, ¥ or referred only to the treaty under which the dispute arose,2° almost all the ‘most recent agreements make express provision for the application of inter~ national law by the tribunal. The first of the three Rainboro Warrior cases is a notable exception to this general rule.%7 In this ease, in which France and New Zealand agreed to refer all the problems arising from the Rainbow Warrior affair to the UN Secretary-General for a ruling, the States parties did not give any direction as to the applicable law. In fact the arguments of both New Zealand and France were explicitly based on international law, although in introducing his ruling the Secretary-General said only that it i ‘equitable and principled’. The 1986 agreements made between France and New Zealand pursuant to the Secretary-General’s ruling provided that any dispute concerning the interpretation or application of the agreements (on the apology by France, compensation, the detention of the two French agents already convicted in New Zealand, and non-impairment of New Zealand exports to the European Community) could be referred by either party to arbitration, but again did not make any provision as to the appli- cable law. However, the 1989 agreement establishing the arbitral tribunal 2 Seobelow,n. 59 > eis notewordhy that neither Scuyt, op. sit, abov= (0,10), nor she summaries in Bernhard ed) Bneyelopedia of Public buernatinal Lae, val (a98s), give a complete record of the applicable ls te sebtral awards. But Coussiar-Coustee snd Eisemann fala), p. eit above (8.10), expecially va. 3 o,f mre netsctir 5s) Soe er, Stayt, No. 425, UKiGree No. 435, FramceSpain Sen, cog did, No. 423, France/Tumisiay No, 426, euiraiPRG; No. 4273, AnstrialFRG No, 435, alsa, 2 Tid, No. 446, FrancelNew Zealand; a2e Uaited Nations Secretary-General: Roting on the Rainbow Warrior Asx heween France nd Nev Zealand, Taterational Legal Materials, 26 (1987) 11340, and Fainbors Warr (3980), 34 TLR 356.104 DEVELOPMENTS IN DISPUTE SETTLEMENT: following the departure of the French agents from Hao provided the decisions should be based on the 1986 and 1989 agreements and on ‘thy applicable rules and principles of international law'.2* The Secretary Generai’s ruling also referred to France's undertaking to enter into binding arbitration with Greenpeace on the assessment of damages payable t Greenpeace for reparation including loss of the Rainbow Warrior, but thi question of the applicable law was left to arrangements between France anc Greenpeace.” Tis also clear that, since the Second World War, arbitration tribunals is cases where there was no express choice of law clause in the agreement hav: ‘uniformly chosen to apply international law. Thus, in the Diverted Cargoe. case! between Great Britain and Greece the arbitrator said that, as then was no express clause on the applicable law, he would limit himself to thy role of judge and decide ‘sur la base du respect dus droit’ as under the ro" Hague Convention, Article 37. Similarly in the Ambaiielos case" betwee the same parties there was no express choice of law clause in the 1926 dec laration which established the obligation to arbitrate differences arising ou of an 1886 treaty. The Tribunal had to consider the United Kingdom argu ment that it had no jurisdiction to decide the Greek claim because the cla was made under general international law and did not arise out of the x8 treaty. Bven so, the Tribunal did not discuss the question of the applicabi lav, but in its consideration of the effect of delay and of the local remedie rule it assumed that international law was applicable. Tn the Lac Lanoux arbitration® the tribunal did discuss the applicabl: law because the parties disagreed on this, ‘The tribunal said that, becaus: the question before it related uniquely to an 1866 treaty, the tribunal woule apply the treaty if it was clear. But if interpretation was necessary the tri bunal would turn to international lav, allowing it in this case to tak account of the ‘spirit’ of the Pyrenees treaties and ‘des regles du droit inter national commun’. This is the common pattern when the compromis refer simply to the treaty under which the dispute arose." ‘Tribunals have also considered how far they are free to go outside inter national law, The UN Tribunal on Libya, * ‘whose decisions shall be base: on law’, saw itself as limited by this and not free to make equitable arrange See the sggeatatd ofthe three member oust (Stayt, No. 448), Rainbows Warrior (1999). TLR gp 3 his ty amar remains unpublished, although i kaown th to Geesnpeace and that France complied ith the award, This arbitation is described by Stax (Wo. gar} a8 France New Zealand’ but the specific agreement to aebisate was Between France and Stichting Greenpeace Counel the argument sas presented by Greenpeace, and the acd was made + favour of Greenpeace. Se further the Memorandum af dhe Gaverament ofthe French Republi to th Secretany-Ceneral ofthe United Nations (rg), 74 TLR 264, 258 “Reports of International Avital scars, woh. ty ps $7955). the sibunal awarded 88,45 ces ety Stayt No. 423, FrancelTuninas No. 426, AvsmilFRG: No, 4272, AusralF RC No. 430, alsa. © Reports of ftraional Abia ards, vl 2,9. 35¢ 950):INT R-STATE ARBITRATION SINCE 1045 195 ments, by which it seems to have understood arrangements that were not provided for by the General Assembly resolution establishing the tribunal and laying down economic and financial provisions for the relations of Italy and Libya. The term ‘equity’, as used in compromis and in arbitral awards, is fundamentally ambiguous: it may be interpreted as signifying ‘principles infra legem, praeter legem, or contra legem’, that is, as involving principles that are part of international law, that complement international law, or that are inconsistent with international law.¥¥ In the Rann of Kutch pro- ceedings, as in the leading ICJ cases,** the term was used in the first sense. ‘The compromis made no provision on the applicable law, The question arose whether the tribunal had the power to decide ex aequo et bono and it made a separate ruling on this matter. Tt found that a tribunal would have this wider power to go outside the bounds of law only if such power were conferred on it by mutual agreement between the parties. In this case the parties’ agreement did not do this clearly and beyond doubt, ‘The tribunal Gid say that as both parties agreed that equity was part of international law, they were free to present and develop their cases with reliance on prineiples of equity.” "Thus there ig no sign that States want to use arbitration mainly for non- egal disputes." The arbitration agreements establishing tribunals almost all refer to international law. And arbitral tribunals in the absence of any express choice of law clause apply international law; they do not seem pre- pared openly to avow that they will indulge in non-legal decision-making, ‘Phe question how far tribunals in fact use compromise in resolving the dis- putes presented to them wil! be discussed in the next section, Another basic question that arises in this consideration of post-Second World War arbitration and comparison with earlier practice is that of the ‘composition of arbitration tribunals. Writers have described the diversity of pre-Second World War practice in this regard, 2 diversity that is apparent from the earliest days of modern arbitration. The Jay Treaty provided for tribunals of three and five members, the umpire to be chosen by the other arbitrators on each tribunal, The umpires were of the nationality of one of, the parties.S° The next year the umpire of the three-man tribunal in the 4 See, eugen Es Lauteracht, Aspects of the Administration of ternational Jusice (1991), Wo 847 Aminterpctve decison tht fa a partial contest the term equity falls int one or other ofthese thrse “ategoris ds not ecole all probleme as tots specific application, “ann of Kutch case (1908), Reports of butratinal ital dacards, vol. x, . $5. Burkina Fall 127 Reports 1980. ps 534 PP» 367-3. “7 Se furtior Section IH, below 9 Coneiation of sours avaiable for such diaputes See, eg, Jan Mayen, ternational Legal Materials, 29 (r98t), p= 797 {HectandiNoray), althoush itis of intereat that the reaeoning ofthe co ‘ator in thi eae not markedly diffrent from tha of mn aebka ibunal or ofthe IC ina maritime ‘boundary eae. For observations concerning jutcabliey and che legal nature of dispute, sue Nicara gua, US ICP Report 1g, po 392 Urirletion and Admisabtin), Nicaragua ®. USA ICT Reports, 1986, p. 14 esp pp. 167-72 (tens). ‘Goethe works forced tain. #0, above Stuy Now # 23nd 3,106 DEVELOPMENTS IN DISPUTE SETTLEMENT: Spain—United States arbitration was not a national of either party.s" I 1797 the Empress of Russia was the sole arbitrator between Austria an Prussia; she referred the dispute to a three-man commission. ‘Apart from a move away from tribunals composed solely of nationals ¢ the parties, no clear pattern or line of development in the composition ¢ tribunals fas been readily discernible. Since the Second World War th large majority of tribunals have been three-man tribunals. There hav also been a significant number of tribunals with five or more members, an five eases were submitted to single arbitrators.5* Among the three-man tr bunals there is again the diversity that was to be expected on the basis ¢ carlier practice. In some each party chose a national; in others they had t select 2 non-national arbitrator. In some the arbitrators chose the umpire in others the parties were to agree on this, In the latter case, the States pat ties regularly failed to agree on an umpire and the ad hoc agreement included fall-back provisions for other means of appointment. Such diff culties in the choice of umpire, however, do not scem to lead to any prot lems with compliance with the final award. They do not reflect on, 0 affect, the parties’ commitment to the arbitration process. ‘This question of the composition of the arbitration tribunal is often cor sidered to have implications for the role of the tribunal and the navure of th arbitration process. It has been suggested that tribunals with a majority ¢ national arbitrators are more likely to turn to compromise, whereas tt bunals composed of non-national arbitrators are likely to operate strictly 0 the basis of law.5* This argument will be considered in the next section. ‘Another striking feature of post-Second World War arbitral practice— and another instance of continuity—is the ad hoc nature of the tribunale As was mentioned above, arbitration treaties began to provide for what i commonly called institutional arbitration in the nineteenth century. The is, States agreed that all, or a particular category of, future disputes shoul be referred to arbitration, States were prepared to commit themselves i advance to arbitration, or so it seemed. hid, No. 4 bid, No, 2 The nord nan sued aise, Apart from the Empress of Rai, the Queen of Spain ad e ‘Queen of England, there has been oaly one woman arbitrator in inter State cates, Rath Lapidoth « Israclin the Faba abiteaton,fxternatinal Cegal Matera, 27 (1988. p. £433 St Stuyt, No. grt, Eeuador‘Rorv: No. 415 the Monelary Gal ext No. 420 the Diverted Cargo cose; No. aye, Belsumirtand; No. aye, te st Rainbows Warrior ewe. {In the Palen (99 TLR t6) and Beagle Chanel (3977, 52 ILA gs xs Beoteen Argentina sd Chile, the sale sebitrat specifi by the igoe Treaty waste Queen of England, but he etere the castopaels of the an Eve arbitstors spectively.) Ii not obnue that there cases apport Von Megas argument th single arbtcators wll be appointed only when they hare special personal quaifeatins, Rather most them seem to beiatended to sve toe and money fn unimportant caee—Von Mangold other SUSE tonto explain resort to a single ebtrator le. et ove (49). ap. $24). "Stuy, No. 2s, Lac Lanowe, fo, cit above (a. 43): Stayt, Nox 488, FranceQS si Series (1963) eport finer Abita, vol p. 7: Sts, Nov 433, Remwof Rath, oe Shove (an 48); Stipe, Nov 442, GuneaiGunca-Pisau (0983), Reports af frermatonal Abie Awards, ob 9,9. #49, 27See Von Mange fos it above (m0) 2 pp. 538INTER-STATE ARBITRATION SINCE 1945 Some, but not all, such agreements established standing tribunals ready to spring into action when called on. Several of these were to be attached to international organizations. These provisions for ‘permanent’ tribunals have received considerable academic attention,3? but most have never been set up, and the treaty provisions thus remain a dead letter in many cases. Even when such tribunals have been established, they rarely decide any cases. Similarly the treaty provisions for future disputes to be referred to arbi- tration have not been much used in practice. Many of these agreements are of a very general nature.*® They are far from being self-executing and need to be supplemented by a special agreement in the event of an actual dispute. Unilateral application is rarely sufficient to get the arbitration process going. In all the cases where the parties had a prior treaty commitment to arbitrate future disputes (about a quarter of the total number of arbitrations since the war), the parties made a special agreement to establish the arbitral tribunal.®? For example, in the Beagle Channel case, although Chile made an initial unilateral request for arbitration to the Queen of England under the 1902 Treaty between Argentina and Chile which conferred on the Eng- lish monarch jurisdiction to arbitrate disputes between those two States, the Queen only undertook the arbitration after extensive consultations with the parties had established the willingness of both to accept arbitration, a willingness expressed in the compromis agreed in 197r. It is clear that States continue to prefer the freedom of ad hoc arbitration; the vast major- ity of tribunals that have made awards since the Second World War have been ad hoc tribunals. How does the subject-matter of post-Second World War arbitration com- pare with earlier practice? The most obvious change is in the decrease in arbitrations concerning injuries to aliens. The Iran-US claims tribunal, the post-war conciliation commissions, and the United Nations Compensation Commission established after the t9g0-9r Gulf conflict, deal with claims like those brought to the old mixed elaims commissions. The individual arbitrations in cases such as Ambatielos,{° Diverted Cargoes,"* Gut Dam, © See, eg, Osllre-Brahm and Wahler, op. ei, above (a, 15); Tomascha, International Courts snd Tribunals with Regionally Resrictod andlor Specialized Juisdictio ia Yudicial Settlement of Internsional Dspace (Max Planck Insttate, 1974), tp. 285; Sohn in tid; and the works Fisted oy above See Simpson and Fox, op. et above (a, 10) chapter 35 You vp, 89 gol, Ie, et. above (n.19), 38 No. 2 Ambatiels, tos cit above (ng); Stuyt, No. 425, Lac Lanou, loc, et above ust, No. 43%, ArgontinlChile (2966), Reports af Inertial Arhtral Acard, sel. 26 P-1ti; Stayt, No. 435, Beagle Channel, ne ef. bore Stayt, No. g44, The Fustage case {8}, 82 TLE 550; Stayt, No. 490, CanadaiFrance, Revue generale cle dnt international pic, 93 {939} 48% ad the fie ir asp arbitrations (Senge, Now. 4258, 428.430.439.451) eile at above (m4) Lacs eit, bore (m4). © International Legal Material, 8 (i969), p88108 DEVELOPMENTS IN DISPUTE SETTLEMENT: and in some respects the Rainboto Warrior!? also involve issues of State responsibility for injury to aliens, but the balance has clearly shifted away from the type of claims that made up over half of pre-Second World Wai arbitrations."* The second largest category of pre-Second World War claims was bound ary and territorial sovereignty cases. ‘These formed about a quarter of al cases; as eleven out of the forty-three post-Second World War cases listec by Stuyt also eoncern territorial and boundary questions, this proportior hhas remained constant, Although limited in number, several of thest awards attest to the considerable significance for international relations 0 arbitration and adjudication as meens of settlement of boundary and terri torial disputes. Where incentives exist to seek a settlement, such as the neec to avoid violent conflict or to define rights with certainty in order to allow development, resource exploitation, or environmental protection, third party setelement based on international law may secure legitimacy anc acceptance for a solution which politicians and officials within the State: concerned would have been reluetant to propose for fear of reerimination Some territorial and boundary disputes are particularly susceptible tc thied-party settlement, where the structure of the dispute is such that bot! sides are likely to get something of what they want, and will thus be able tc portray the outcome as a success rather than a loss. Settlements in bound ary and territorial eases are legally distinctive in that, unlike an award 0 damages in a case concerning State responsibility, they are typically dis positive as to title to territory or delimitation of a boundary. About a fifth of the tribunals listed by Stuyt dealt with claims arising ow of the Second World War, The remainder are a diverse collection, but thei common feature is that they all involve some aspect of tzeaty interpretation Finally, the question arises which States have resorted to arbitratior singe the Second World War? ff the cases arising out of the war are dis counted, it is France, the United Kingdom and the USA that have mad: the most use of arbitration.® ‘The States of the former Soviet bloc hays thus far been, not surprisingly, completely absent. As regards Third Worl. States, they have resorted to arbitration in several major boundary cases although not thus far on other issues. Latin American States are no longe subjected to extensive arbitral claims for injuries to aliens by more powerfu developed States: Their early commitment to peaceful settlement of dis putes and their erucial influence on the development of arbitration treatie have not led therm to turn to arbitration since the Second World War excep % Lc. above (m. 375 thie award rset othe determination of compensation dus to Geeenpere sad tothe settlement botwecn France at the family ato comspenstion forthe det ofthe ee ete ber billed: The onpubiched France'Geeenpesce award deals with eparton “stg par this maybe atbuted othe rie of rp avin settlement and mona cis comaisions total umbers of cana sube 9, France 33, Kaly 1, German saly beeen German StatesINTER-STATE ARBITRATION SINCE 1945 109 in six boundary or title to territory cases. Asian, African and Middle East- ern States have also submitted boundaryltitle to territory cases to arbi- tration. In fact, all except two of these cases have involved ‘Third World States. This corresponds to the willingness of developing States to use the International Court of Justice in boundary and territorial cases, and is further evidence of the peculiar suitability of these cases for arbitral and judicial settlement, ‘The hazards of generalization and prediction in this area are clear from earlier statements overtaken by events. Schlochauer spoke of an increase in arbitration since 1945 because of the tribunals established under the peace settlements, He said that ‘ad hoc tribunals are resorted to only in excep tional cases’, and predicted that what he saw as the lesser authority of the International Court of Justice as compared with the Permanent Court would lead States to turn to arbitration.® Similarly Caflisch predicted a more promising future for arbitration because of the reduction in activity of the International Court of Justice.” But two basic conelusions may be ven- tured. It seems likely that arbitration will continue to be an important alternative to the International Court of Justice for legal disputes between States. And it seems very unlikely that generalized institutional arbitration svill become more popular, although specialized bodies such as the GATT Disputes Settlement Panels and the Law of the Sea Tribunal may assume greater importance. IIL Tue Contaisution oF Ansrraar Decrsions To Dispute SETTLEMENT The three most obvious reasons for States to choose arbitration over settlement by the ICJ, particularly now that the modified and functional Chambers procedure is established and has demonstrably increased the flexibility of that body, are the possibility of secrecy, the possibility of {greater party control over the composition of the tribunal, and the ability to avoid an intervention in the proceedings by a third State. A fourth feature is the possibility of closer control by the parties of the questions actually addressed by the tribunal, although the International Court has also shown considerable deference to the parties in special agreement cases. Further possible advantages which have been relevant if not highly significant in practice include the possibility of recourse to the ICJ against a tribunal decision,®* and conceivably the non-application of provisions such as Senlochaver, to. eit above (a, 25) ap. 20nd pag & ec sbove (13), 9 cig the Arita dua ofthe King ofS Bissau v. Senegal, CT Reports, 1998p one of the grat psychological et ai (1906) ease IC] parts, s96oy 192, and Grn izmaurce argue more generals "There fs n0 do 3s to remoting to international sedation the Feshing whereas ina international pl ‘ then the final vate is a or this reaton, however desirable nality may be in principle, ii at oust wosth ronsieving10 DEVELOPMENTS IN DISPUTE SETTLEMENT: Articles 94 and 102 of the UN Charter.“ Resort to arbitration may also be response of States discouraged by a particular experience with the ICJ. Finally, where it is desired to entrust resolution of the dispute to persor with particular technical competence, arbitration by technical experts or b international adjudicators closely assisted by technical experts may be pre ferred to IC} adjudication.” Secrecy Secrecy is precluded by the Statute and Rules of the ICJ. Notification ¢ the request or compromis must be circulated to all other parties to the Sta ute,” and the judgment must be made public.” It appears that the Rule do not preclude the parties from providing for the oral hearings to be pr vate (although this is likely to be rare in practice), and parties may con ably be able to persuade the Court to exercise the discretion allowed to it b the Statute and Rules to keep the written pleadings private. In an arb tration, however, the parties are able to keep all phases of the proceeding private. Thus, for instance, very little is generally known about the prc ceedings or reasoning of the Dubai-Sharjah and second Rainbow Warric (Greenpeace-France) arbitrations, although inter-State arbitrations i which not even the award is published remain exceptional. More commo is the permanent confidentiality of pleadings and oral arguments, as in th Anglo-French Continental Shelf case. If such confidentiality can be relie ‘upon, States become free to take positions in the pleadings and oral arg. whether «soma spstem of international appellate jurisdiction could not be insite sccording fo which a ttbueal sterational Cat of Justice would rank a2 nal court, Sippel rather than offre instance..." review of Jnl, The Prospects of Intemational Adjudicatio. University of Kantas Lave Review, «3 (2963). pe 4423 P30. ‘2 See the Cuinea-BizouiSenegalsrbtation (toy), 8 ILK 2, in hich the tebunat bald Taz of the UN Charter nas sot material in that ‘slide the 1960 Feaneo-Portuguese ind noe been sesisteced with the UN Seerstarst, Artie 1921 ie ts invocation bao al shih was ot an organ ofthe UN. Cf, the consierable importance stached to Article the United Kingdom im negotiations with lend over a compromissors cause for rslerence 10 ICY (Fiheres Juraditon case, IC] Reports, x973. 9-38 pp. 1273), andts invocation be Pakistan the ICAO Cowl exe, ICJ Report, x97%,p. 46 p. 5 and on the par of South African the Sou West fica enees (eg diaesting opinion of Judge Van Wyk, [CT Reports, 952, and separa pinion of Judge Van Wyk, 7 Report, 1986, p. 11). 7 Thus it ts been saggestod tht France's preference foe arbitration inthe tal Shelf cons was influenced by the Nielear Tots ce, ied th hs ceported preference for aebitation rather tha provisions in teats (lacluding the «990 int development sgrament with fia). Arile 95 ofthe UN Charter, in the chapter concering the IC], provides Nothing inthe pr Charter shall prevet heaters of the United Notions frm entrusting the olution of thee dif tovther tribunals by vireue of ageeements already in existence o which mas be concladed in the future "Ths the 1982 Law ofthe Sea Convention provides for binding abiation by special ati Igunals consisting ff qualified expert if dhe dispute concerns fisheries, protection and preserva 1 the mariae enviroment, marine scent reebrch or navigation. Concern has oeeasonally be hur the epbiiny of the IC) ta hondl, for example, sientealy complex and tcchaie mental dipute ‘Statnte, Art 4o(3) and Rules, Art 92, Statute, Art. 39, and Ree, et. 93.INTER-STATE ARBITRATION SINCE 1945 ‘ment without concern that these may be later cited by third States as, for instance, evidence of State practice or admissions against interest. Conti dentiality during the proceedings, as in the UK-US Heathrow Landing Charges arbitration conducted discreetly in The Hague, may be useful to avoid potential domestic political difficulties resulting from publicity. The absence of publicity may be important also to enable States or individuals to preserve dignity in particular cases. Choice of arbitrators States may value the capacity to choose or at least to influence the choice of arbitrators for many reasons. The case for the appointment by States of nationals as arbitrators is similar to that for the appointment of ad hoc judges in the ICJ: it gives the parties confidence that their particular national concerns will be represented and pressed throughout the tribunl’s deliberations, As in the International Court, national arbitrators have on occasion voted with the majority against contentions advanced by their State," although dissenting opinions by national arbitrators against their own State are rare.’5 The case for the appointment of all or all but one of the arbitrators by the parties (including the appointment of non-nationals) is principally that this ensures that each party feels a degree of confidence in the tribunal as a body likely to appreciate the Factual, political and legal cir- cumstances in a manner with which it can identify and which it can accept. In cases where the parties have shared perceptions, it may be possible for them to agree on all (or all but one) of the arbitrators. The freedom to choose arbitrators is now matched by the freedom offered to the parties by the IC} Chambers procedure. In the Gulf of Maine case the power to choose the judges who would form the Chamber was clearly 2 major attrac tion of the Chambers procedure for Canada and the USA; they made it clear that, if the judges they wanted were not appointed by the Court to serve on the Chamber, they would turn to arbitration.” There was some initial doubt whether the provision in Article 17(2) of the Court’s Rul that ‘the President shall ascertain the views of the parties regarding the composition of the Chamber’ allowed the parties actually to control the choice of judges by the Court.77 Some judges still maintain that an essential difference between the IC} and ad hoc arbitral tribunals is that in a court of % Sc eg the postion ten by the Spanish arbitrator in Lac Lanois, foc, eit sbove (a. 42) and td ten by the Atatsian arbitzatot inthe eve concctning the Interpretation of ile 2g ofthe Treaty (of Finance and Compensation of 37 November ig6s (x9ya), Reporte of Internaional Arial st woh, 194.3. On the IC}, see, eg, Sub, “Voting Behavior of National Judges in International Cours, Aner can Journal of International Late, 6 (969), p- 2243 0d Weis, "Judicial Independence and Ipat al fay: A Preliminary Inquiry’ in Darnosch (ed), The fatemationa Court of Juaice at a Croxmoads {tg87) 135 See Oia, "Pacther ‘Thoughts on the Chambers Procedure ofthe International Court of Justice’ American Fura of In 098), Ps $30: Sehwebe, id Hac Chambers of the tse. ‘ational Court of Justice’ bid, 8 (1987), 9-830 7 Se the disanting opinions of judgsr Morozov and ElIchani in the Gulf of Maine oxte, CF Repors, 1982, 9p. 1-12ua DEVELOPMENTS IN DISPUTE SETTLEMENT: justice the parties do not, and ought not to, have the power to choose th judges (beyond the specific exception in relation to judges ad hoc). Bi the Court has consistently given effect to the wishes of the parties in i establishment of Chambers.” It may be important for the arbitrator to share the social or legal cultu or the historical experience of one or both States. The Temple case illu trates the potential importance of these factors. In his dissenting opiniot Wellington Koo, an Asian judge, did not regard the failure of Prince Dan rong or the Siamese Government to protest at the flying of the French fi during his visits to the temple as having great legal significance. Kc quoted the Prince's daughter: ‘It was generally known at the time that v only give the French an excuse to seize more territory by protesting’, Kr accepted this, adding that this ‘was, generally speaking, the comm¢ experience of most Asiatic States in their intercourse with the Occident Powers during this period of colonial expansion’."° A view of Thai or Asi: ‘culture is also evident in his view that, rather than being a legally significa ‘omission, it would have been inappropriate to raise the question of @ min: boundary variation before the Franco-Siamese Commission when Thailar was trying before that Commission to regain whole provinces which claimed had been taken by France. In cases where the States share comme cultural referents of central importance, arbitrators or judges who do n understand these may risk missing sensitivities and nuances in the partic perceptions of the dispute. Where cultural differences are important to t substance of the case or to the presentation of the decision, the tribun almost inevitably must aim for neutrality,” but a neutrality which engag with the relevant cultural mores rather than ignoring them,°* Intervention ‘The Statute of the IC] opens the way to intervention by third States contested cases on two bases: a right to intervene where the construction, Sethe dissenting opinion of Judge Shahsbuddeen in Gulf of Fonseca (El Salvadoritiondara Applicaton by Nicaragua for Permission to Intervene, ICY Reports, 2992, p. 3 (ae also the dissent opinign of Judge Tarasov). 7" See the desration by Judge Od, & 19 Reporte, 1962 p98 Cir Rein, “Cultural Neutrality: A Prerequisite to Acbitral Justice’, Michigan Journal of Int national Late, 16 (2985), p39. Am abvious arena difference oncemns the powers snd bfigations hs State with cae tothe expropriation ve protection of property. CE, more generally Cohen, a, Laing lerrt Cultures: Commication Obstates in Internationa Diplomacy (2991), The Japanese Howse Tax eats (1903), Reparts of International dnitral Atard, vol. xt p. ray be open to ertci on thie ground. The arbitrators sere Tehiro Motono (Japan), Louis Rena (France, forthe various Wentcen powers), and Gregers Grom (Norway, 29 Umpire). Japan's dis potntnent ith the aaeddisnsined eto pariipate in international aljication foray years. Eizo the failure of the Pranca-Morocean Conciliation Commission established in 1957 following » to Algiers of ight from Sabot containing leaders of dhe FLN. Morocco withdees foun! ion let te Commission deended bythe vote ofthe thzeo Western members (do Visscher (? tnd Masugi) agaist thoae ofthe Lebanese and Moroccan members (Sfoklaout + to postpone consideration of a Moroccan request that evidence he heard from Ben Bt CF Reports, 1987. . 13INTER-STATE ARBITRATION SINCE 1935 ng a treaty to which the State is party is in question,®* and a power of the ‘Court to permit intervention on application where a State hasan interest of a legal nature which may be affected by the decision in the case’. All but one of the attempts to persuade the Court to exercise this power have been unsuccessful, and the one exception, Nicaragua's intervention in the Gulf of Fonseca case between El Salvador and Honduras, was permitted only within narrow substantive and procedural bounds.* It has been suggested that the Court's very restrictive approach to intervention reflects its concern that if States contemplating referring a dispute to the Court apprehend that another State whose participation is not welcome may nevertheless succeed in intervening, they are likely instead to go to arbitration.®S Autonomy of the parties renders such intervention virtually impossible in ad hoc arbi- tration, although it is of interest that the 1991 Environmental Protection Protocol to the Antarctic Treaty does provide for intervention before the Arbitral Tribunal.®* Choice of questions It is not uncommon for the instrument referring a particular matter to arbitration to circumseribe the question in issue narrowly,® to define the aud other passenger. De Visscher's view was that he rel ise ere of aw nt of fact and that Mor. ees concern that thee sites be heard ae unjustified ard a pretest (Apes rents da dra (Sdureldefa Cont Inernatonete de Justice (agi), at po 3t4). For Morocean and French views ae tespestively Hamach,futomationl Conciliation, 96, a pp. 62 (eprinting a Moroccan government ‘publication, and TAM fuze da F-OABV", Annu rancats de drt international, 3 (4938), P- 283 Ct the Haya De La Taree eas (ColembiatPor, i which Cubs aspera to intervene under 1663 (ICT Reports, rot, ps 783 pp. 75-7; the flusal to permit intervention by El Salvador in the thea-euventjetediton and arosebliy phase of procedngs in Nicaragua v. USA (ICY Repars, Ss) th separate and deseating opinions i this case; and the comments on this devsion by ba hbase, L'Intede pour agi devant a Cour Internationale de Justice, Recuel des cous, 209 igBel),p. a3 at pp 2B9n5 ‘SCT Reports, 1990, P. 92 Glecixion af the Chamber). By this decision intervention did not snake Nieacagua party tothe ese, andthe Special Agreement benneen Honduras and El Salvador remained restr alot asta. Set seo the earlier decision of the fll Cout, ICY Reports 1999, 3 lding that {he decision on intervention we a matter forthe Chace already constitute se See Brownlie, sArbitention and Tnternational Adjudication: Comments on a Paper by Judge M. Lac’ i Soona (d,), International Avbrauin: Past and Prspecis (1992), p. 65. The Lbyaldfata Gantincntal Shel cas, n which beh partis opposed Italy's application tointervanc under Article 63 of the Statute (CF Reports, yp. 3h and the Libya’ Tia Continent Shelf xs, ia which both par- ties opposed Malas application to tnervene (CJ Reports, 1981, p. 3) stay be the typeof situations hich this comments applicable, Ansty of thi sort willbe enhanced by the decision of CChasnber on Nicaragu's aplication to interven in the Gal of Fonseca case that, ifthe other require ‘ments pecaining to Artee 62 were saiied, no jriditioal ness between the frervening State and ‘he parties was required Peele 7 of the Schedule on Arbitration states “Any Party which belcve thas a Tegal ineret, slither eneral or individual, rich may be wstanally alfected by the avard ofthe Arbiral Tei bua ay, unless the Arbtel Tena deides otherwise, intervene inthe peaceedings gin the slasvialFederad Republic of Cztnany ease (ag72), Reports of Interrational Abi Award vl. 19, p. y the pies aked the tsbural to consider ony exceptions tothe renunciation ‘lause inthe sgt tealy ater thaa co interpret the esnuneation cause iteny DEVELOPMENTS IN DISPUTE SETTLEMENT: rules which the parties intend the tribunal to apply," or to limit the rang of decisions which it is open to the tribunal to reach.®? Arbitral tribunal have tended to accept and comply with such limitations.” The PCIJ dit express concern in the Free Zones case about agreements between parties request the Court to adopt procedures not provided for in the Statute,” bu noted that it was for the Court to promote, so far as compatible with th Statute, ‘direct and friendly settlement’ of disputes, and did in fact do a the parties wished in making an order on a minor point in terms which indi cated its likely views on the major issue.%* In the Minguiers and Ecreho ‘case the International Court did not question the view of the parties tha the islands must be under the sovereigaty of one of them, and in the Gulfo, Maine case™ the Chamber did not controvert the view of the parties tha the boundary must end at a point within a designated area, While th Court's duties to the entire international community are greater than thos of an ad hoc tribunal, the apparent willingness of the full Court and 0 Chambers to countenance certain agreements a3 to the basis of litigation indicates that, subject to the Statute, the adaptability of the [CJ to th wishes of the parties is not so much less than that of arbitral tribunals i practice a8 theoretical analysis might suggest. Furthermore, the partie may often not wish to, or be unable to agree to, define tightly the question posed and the law applicable even where they do resort to arbitration rathe than to the Court.” Dispute settlement As indicated above, inter-State arbitrations in recent years have almos always been initiated by special agreement, often in light of a modern treat which had disputes of this particular nature firmly in view. Althoug! changes of government or of perception could lead to withdrawal even fror. special agreement eases, inter-State arbitral tribunals since 1945 have not i: * As with the ules for desition concerning neutrality which were expressly stated by the partis tobe ex lata forthe Alama arbitration, Dritish an Fareig State Papers, vol 62. 233) lak dow inthe t8;t Treaty of Washington; and th rules of prseription stated by the parties ta he applicable the Guyena Boundary arbitration (British aed Foreign State Papers, vol. 9. 16). Asin the Taba acbteation, la. et. above (2.8), i which the tribunal sealed upon to cic ‘whether each boutary pillar was lated as pected by Egypt or by Isac; other leations were rele "See, eg Stayt, No. 427, HonduraslVicavaya "The Cou did aatcompy with a informal ration avilable nolfcially before giving judgment. PCH, Series, Now 33 ( 2 ICY Reports, 1953. b-4: 51 IGF Reporte 1984, be. 5 Scealso Jens, The Prospect of International Adjudication (1964), pp: 604-6. © See) ety Stayt, No. 438, USiFrance Air Services, in hich bath partis ask determing is jurisdiction oa the bass of brood interpretation ofthe abiteaion agreement, and the tt tbuoal was fra to give angle anarertothe so questions puc cot, oo eeverse the onder of the que 61), 30 1LR 76a p. 88. bythe partes to make the raul its elitINTER-STATE ARBITRATION SINCE 945, nis fact been faced with the problems of the non-appearing or disappearing defendant, which has been a frequent feature of recent ICJ eases begun ‘otherwise than by special agreement.” ‘The characteristics of special agreement, presence and co-operation of the parties, and ad hoc rather than permanent tribunals, provide the con- text in which distinctive features of the dispute settlement function of inter- State arbitral tribunals can be discerned. The parties to the case are the immediate audience to whom the tribunal's findings and decision are addressed. The similarities between arbitral tribunals and IC] Chambers in ‘most of these respects are clear. But the IC] as a standing tribunal, with an enduring relationship to past and future decisions and with a widely circu- lated series of law reports, is inevitably concerned with a wider audience at the time of judgment, albeit that during the oral hearings the intimacy of the setting may lead the judges to treat their colleagues and the parties as the only audience. ICJ judgments do as a matter of practice seek to treat in some way the principal arguments and viewpoints advanced by each party, even where these would otherwise be peripheral to the main line of reason- ing in the judgment.® However, particularly in judgments of the full court, the language and style of judgment, and the arguments and processes of reasoning employed, may be further removed from those favoured by the parties than is evident in some arbitrations.” The contrast is not absolute: some arbitral tribunals do not appear to have successfully engaged with both parties,'° and some IC} judgments have been notably successful in this regard.’ If the potential for arbitral tribunals (and perhaps Chambers) to be closer to the parties is not itself a source of controversy, the suspicion that arbitral tribunals may be inclined to depart from established principles of Jaw has aroused more concern for some States and commentators," and merits further consideration here. Although the power conferred upon Defendant States have sla file to appei corporations, 2g. BP v. Libya (2974), 33 IER 297, [Lbya, International Legal Materials, 29 (98), he Gulf Maine case, lo et. ovidet a particularly lea illstrstion % CE Prat, Tae Latent Poser af Culture ad the lnternational Judge (1979). The GuinealGuiea- Bierau award lo. it above (a. 55), pass greater attention to serain betes of conceen to Alcan ‘States including te ight to development, chan would be expected ofa comparable FCI judgment. The Ranma Rito eas, toe ls above (46), sof interest that the parties al 3 opportu to com sien onthe tian ‘ard in draft, and there comments tere taken ito sou in prepa Sng the final version. ‘Phe award ako ince extensive passages atibited to the dissenting (India ppeinced) arbiter. of abieations natiited by transnational Libya (2977) 53 TER 389, Liamea Japanese bove (a. 82); Beagle Channel, le. et above (a. 54). so: The North Sea Contnenial Shel eases, [CJ Report, x96 p. 3, the Libya! Tunizia Cantinentak ‘Shelf ease, CF Reports ss, p- 18, ad the Burkine FasnMall eae, loo. cit abe (3.48), may be trey nto th etego eg, Dennis, Compromise: The Great Detect of Arbitration’, Columbia Late Review 11 (928) p_4a3. Sinvlar conssrns have been cepretod thatthe establishment of Chambery tothe TC} ‘nigh ead to reyonalcaton of decisions and to the destruction of the cohercnce of jurispruden repited toby the Courts eo, e.g, Oda and Sehebel, fo. eh above (a. 96)16 DEVELOPMENTS IN DISPUTE SETTLEMENT: many tribunals to decide on the basis of ‘(international) law and equity might appear wide, arbitral jurisprudence has established that such clause exclude departure from the principles of international Jaw." A number 0 early studies reached conclusions similar to that of John Bassett Moore: ‘a fone to whose lot it has fallen actually to examine the work of internationa arbitrators, from the earliest times to the latest, I am prepared to pro ounce unjustified the invidious imputation to them of a disposition to sub stitute diplomatic compromises for conclusions based on law an justice’ Some tendency toward compromise is inherent in any process 0 collective decision:"°5 the question is whether arbitral tribunals take com promise to the point of sacrificing legal security or the trust of the par ties.'°® Of the post-ro4g single-case arbitrations, the vast majority appea to have ended with a legally defensible decision,*°? The Anglo-French Con tinental Shelf and GuinealGuinea-Bissau'®? maritime boundary arbi trations do not appear to involve more compromise or law-making thay similar decisions of the ICJ. The air services cases produced effectiv decisions based upon plausible treaty interpretations. The Lac Lanoux,"* Austro-German,"* CanadalFrance' and first Rainbow Warrior"? case resulted in clear findings that the conduct involved was lawful or not law ful. The decisions of M. Sauser-Hall on the Albanian monetary gold," 0 the arbitral tribunal on non-exhaustion of local remedies in the Ambatielo claim," and of the PCA in the Lighthouses claims,"*® all represente: legally credible positions in cases which also arose before the ICJ. The lan: So, eg Noreen Spooner" Chine (03), Retort Iterator, oh rj a of Kayo. ove 0.48) “ie Clete Papers of Pa Basset Sloe, wl § (944), a pe 3085 queen Carson, 71 Proceso Internaiona rion (940), 8 SCE ene y the Canada apered seirater, Dona Pac ne seating ion tn Filtge coe res hat the oer meter othe Trina ave made soni forts Tiny ty leas hep sed my net sold tbe interpreted tack of appreciation on pore Those fears have been aad ut unfotnately, an inporant irene of pion cei Irs sbove (ns), stp, 654 See aa the indication by the Faistawappined abate, Nel gin, im Rn of Kt a sited is poston i eso eorodste the wwe oft hana (Laerre) and enables mejor to Form ee et abe (0. 0), ee Ei les, Inrmaional Cstona Late and Coat (192) 3p hn ppg ine satin djuienen tears of Olver Wendel Hoke the propecia he courts {ear and thing wore pretentious, re what I men by law’ See alo Fema, "The Future Foote Iterations Law's dedi iterate, fe du comenave 1833-1773 (979) we, 38599 : of Sots ope above (1), purport to idensty wine (in whole o in part) in 3 pons acbiations shi wihout constlertog boundary ese. Snort Leg Matera 8 (2) "> at above (53). Use above ( * Report ofarationl titra cds yok 106 3 (93 Pe Wat. 25, Bid at. 98 se TL ga (50 sof arnt ital Aad, a, p 195 (29s 23 IER 59 (1955).INTER-STATE ARBITRATION SINCE 1945 m7 boundary or title to territory eases are more difficult to characterize, The ChiletArgentina (1966),""7 Rann of Kutch'®® and Taba'®? awards upheld parts of each party's claim in a manner perhaps calculated to encourage the acceptance which each in fact achieved. None, however, has the character of crude apportionment; the dissenting opinions in the two latter cases point to legitimate differences, but not to the majority having abandoned law for compromise. In the Beagle Channel award a unanimous tribunal (comprised exclusively of individuals who were at the time of appointment IC] judges) largely upheld the claims of Chile, but there was little in the award (0 appeal to Argentina, and the tribunal did not succeed in settling the dispute."*° In cases where much depends upon the weighing of complex historical, cartographic or survey evidence, the scope for a law-governed decision, which can be seen as satisfactory by both sides may be considerable.'* Where such issues are involved, authoritative third-party adjudication may be more acceptable domestically than bilateral negotiations, as Canada’s experience with the Gulf of Maine illustrates. The reception of the decision, may be affected both by the specific dispositif and by pronouncements 2s to the law; thus, for example, the tribunal may in some cases reject or mini- mize major contentions of one party as to the legal principles involved but nevertheless reach a result more satisfactory to that party when the law is applied to the specific circumstances of the case."** Arbitral tribunals may principle play a particularly useful role where extensive fact-finding is required, whereas it has been suggested that the IC} has preferred to base its judgments upon largely uncontested facts rather than to engage exten- sively in the fact-finding commonly expected of a tribunal of first instance Certainly the ICJ has not used its power under Article so of the Statute to appoint experts, except in the Corfiu Channel case to assist in the assessment of damages, #9 and it has seldom made use of visits by judges to the relevant, site (descents sur les lieux). As a practical matter, however, differences in fact-finding between the IC} and arbitral tribunals dealing with single Lae eit, above (n. $9) "8 Loe eit. above (m0) 9 Loe eit, above (n. 8) Loe it. above (8.54) It ia nevertheless clear thatthe aor influenced the agrsinent ultimately reached through papal mediation (82 ILR 671). "3" Fitemaurce perhaps overstated the cave in writing that no enurt of law ean plese both parties in a liigation, orl the intereatod in a request for an advisory option; otto do so is ned te tole {ait itr of «court a8 opposed fo a commizson of sonctaton. Before a cour, someone bas 4&0 Jove or be dsappointed: Toe it above (a 106), 3tp 379. "= "The sngl-Noreepian Fisheries ease (ICY Reports, 1951, p. 116) i sometimes sen in thi tights Norway's batlies were generally upheld, but the Cour did ot accept anu of Norway's argument tothe i, "OICF Reports, 1940p. 4. "The IC) has appointed experts in exercising a ower conferred by compromis, a8 18 Burkina Faso!al (nomination of experts oedet), foe. ci above (8. 45)ug DEVELOPMENTS IN DISPUTE SETTLEMENT: disputes have not been great; the contrasts are sharper between the IC] an claims tribunals, partly owing to differences in subject-matter." Where the positions of the parties depend upon fundamentally differen views of the applicable law, the scope for the tribunal may be very limited A number of recent African cases illustrate the point. In the Frontier Dis pute (Burkina Faso/Mali) case, the IC] Chamber" was able to produce ‘unanimous ruling upon the general basis of uti possidetis as to French col onial boundaries, notwithstanding significant differences as to, fo example, attitudes to colonialism between the two ad hoc judges. The Gui nealGuinea-Bissau arbitration tribunal'** was also unanimous, applyin tsi possidetis to the 1886 Franco-Portuguese treaty. In both cases the de limitation met some of the concerns of each party, In the Guinea-Bissax Senegal arbitration, however, the tribunal'*7 was faced with irreconcilabl legal views, Senegal taking a classical international law stance in arguing 1 possidetis juris as to the 1960 Franco-Portuguese treaty, and Guinea-Bissa taking an anti-classical and anti-colonial position which denied both the va idity and the effectiveness of the treaty. ‘The President joined the Senega appointed arbitrator in holding that the 1960 boundary treaty did have th force of law between the parties with respect to the territorial sea, cont guous zone, and continental shelf, contrary to the views of the third arb trator. But the President was not able to persuade the Senegal-appointe arbitrator that the tribunal was justified in proceeding beyond the liter: terms of the first question posed in the compromais in order to delimit th EEZ and thus fully to resolve the underlying dispute. The Guinea-Bissat appointed arbitrator dissented strongly from the majority holding as to w possidetis juris, concluding that the 960 treaty was not binding in relatior between the successor States. ‘Whereas the lack of compromise may on occasion have made the disar pointed State's rejection of the award more likely, other long-running prot Jems have flowed from awards which were not comprehensivel reasoned, '** or from expressions of doubt in the award or subsequently b members of the majority which reduced the political effectiveness of th award." While lack of unanimity has generally not undermined the effet 1s, “Arbitration aad [ntesnaticnal Adjudication’ in Soons (ed), International Arbirati Past avd Prospects (1932), sk P= p-3, opnes thatthe HC} isnot wel Eited to basing disput ‘which involve the appietion of national aw (as with aspects ofthe Guardianship of Infants case, I or such other matters as the nonepublie international fw aspect of the reli il ight of nomads (stem Sahons IF Reports 975 13, CY Reports, 1986 px 42 Judges Mohammed Bedaoui (Presiden), Manfred Lachs, and Jo Maria ind, Judges ad foe Frangois Luchaie and Georges Abi Sas. Loe, et above (ns $3): Judges Manfred Lacks (President), Kéba Maye and Mohammed Be 7 Loe. et. above (e. 69): Barberi (President) Bejaou, and Gras 1S ig, the 190 Asan ofthe King of Spas (Nicaragua/ Honduras). the 1839 Guyana Boundary awaed, lo cts above (9.88) (UK shen Guyana/Yenezuel Sec, 2g the views expreeed by Contos! for Veneauela, Severo Mallet-Pavast, in a memorand published in the American Journal of faternational Lae, 43 (2945), 5283 andthe dfs with Guinea BisculSenogal avard asing Boh toca the face tat the award did nt stl the undertytINTER-STATE ARBITRATION SINCE sog5 19 tiveness of awards, uneasy compromise or suggestion of departure from legal principles in the award has done so. It has been suggested that where there is only a single ‘neutral’ (non-party appointed or jointly appointed) member, the psychological and political pressure to compromise will be at its greatest, for the ‘neutral’ needs the support of the arbitrator(s) appointed by one party to secure a majority: this proposition does seem to be supported by modern experience, especially with three-member tribunals. ‘The practice of issuing non-binding recommendations to the parties is a form of conciliation which need not undermine the integrity of the arbitral process, where the recommendations are clearly ancillary to but do not detract from the dispositif. The recommendation of the New Zealand! France Tribunal in the third Rainbow Warrior case that the parties estab- lish a friendship fund with an initial $2 million contribution from France may be placed in this category, although this is undoubtedly seen as a pal- liative or compromise by those who found the dissenting opinion of the New Zealand-appointed arbitrator persuasive.'®° In the US-France Air Services (1978) case! the parties asked the tribunal to make a non-binding finding on the reprisals question, although the decision on the primary question of the interpretation of the relevant treaty was to be binding. IV. Tae Impact oF INTERNATIONAL AnarTRaL Awarps Any modern study of international arbitration should consider the ques- tion of the impact of inter-State arbitration on international law and the sig- nificance of arbitral decisions as a source of international law in relation to other sources—in general terms and with regard to particular areas of inter- national law. Clearly this is not a simple undertaking; there are more ques~ tions than answers in what follows, A fundamental limitation of the otherwise valuable work edited by Loe. ei. above (43) a pp. 63-9 (queting the Notebohm passage rlerting tothe Alabama CJ Reparts, 1978, p38 8 IGF Reporte 982, p. 57 and p. 79. Thitlway (lo. ct. above (n arbitra avard is ere refered 10 as an example of State delimeation Aecsion' under Artic 38(4)(d) ofthe IC} State TC] Reports, 1983, p. 399. 9 ICY Reports, 1984" 8, ©, 393, andthe Chstaber’s general comment (pp. 292-1) that in sscrttining the principles and rales of iteratioal law whic in general govern the subjee of mantie Askitain iil fer to conventions and international eastom tothe dliption of which the adic decisions ([Ariele 38) para. 1(d) ithe ofthe Court oof arbitration telownas have aleady made ‘ubstartal contribution ‘The Chamber inthis ge appears tobe pa more attention to te Angle ‘Prope decision than ithe fll court in TunsialLibyer sa Libya "Logit. above (139). 1 TC Reports, rg, p. 351 a pp. 585-658, 8 Pci, Series A, No. 17 (1938). 3 "8s PCI, Sees AB, No. 33 (4933) p16. 6 PCL, Series AIB, No, 6 939). 43 1] Reports, 1949. Be 174 8 ICP Reports, 1981, 9-131 89 1CJ Reports, 130, 43 ° xg cbital dead ofthe King of Spain, 1C7 Pleadings, ol. + and 2, and the subssissions made by States and by the UN in Interpretation of Peace Treaties. In each of thes atleast 18 abitoions (Gia iter Stats) are referee 1. 29) suggests chat the rice ather than 49 ulicial26 DEVELOPMENTS IN DISPUTE SETTLEMENT: Jaw, as for example the Barcelona Traction pleadings.’ Here the parti both gave lengthy expositions of the arbitral decisions on diplomatie prote tion of companies and shareholders, and accused each other of misunde standing and misrepresenting the decisions. Although the eleven volum of pleadings are replete with discussion of arbitral awards, the Court ¢ not mention any particular award in its judgment, contenting itself wi dismissing the whole corpus as limited to particular facts or based on t particular terms of the compromis. Other pleadings contain extensive d cussion of particular arbitral awards where the substantive reasoning of t avvard is seen by one or both parties as particularly useful to the arg ment." In the Gulf of Maine case the USA relied to a surprising extent the Grisbadarna award as a basis for its proposed adjusted perpendicul line.93 In this case, as in TunisialLibya and LibyalMalta, each pat invoked the Anglo-French Continental Shelf case in just the same way IC] eases. Arbitral proceedings are occasionally invoked where one party a later case seeks to hold the other party to pleadings or admissions made an earlier arbitral proceeding." Some pleadings include references to art tral decisions on incidental matters but not on the issues central to the cat ‘There is an interesting difference between the UK pleadings in t Fisheries Jurisdiction case, which refer incidentally to several arbit awards," and those of the Federal Republic of Germany in the clos related case, which make no such references.'% In some cases pleadin "See alo, eg US Diplomatic and Consular Stan Tebran, 1C7 Pleadings, 1979. pp. 81, legcan Sea Continental Shelf, {CJ Pleadings, 197%, pp. 160, #23, 303, 228,258, 278, 2 ‘prs and Nuclear Tests, (CJ Pleadings, 973, ¥0l- 1 Pp. 198 193: 200) 283,202, 397.3 80 485, 494 3 Ste, ge the UKs use ofthe Flond af Palos casein Minguers and Eerehos, 1CJ Plead vol. 4, pp 48 it and France use of North Alantie Coast Piskevies in US Natale in Norcea, Pleadings, vel & pp. 65 ly and vol 3, pe 173- “OO Reepoadiag to US eslance on the Gtsbadarna avard (United States Memorial, ICF Plea val, 2), Canada pointed out that under Article 8 ofthe IC] Saute the avaed ‘could oaly bea cubs $y emeans for determining lo” (Canadian Counter-Memoril, par, 43), and soght 9 distngs tad ta contest ite specie authority, noting that i hs aot bev Tolaed in State practice, nor ia facial o arbitral desisons (pata. 43). The amard ad been expel dicarded ss a general yuide foarte deiitation bythe International Law Commision, and as wide treated as being 3 prod dl the particular circumstances of the ese. The Court isl did not purport to discuss the relevance “reight of the Grizbadarsa ease on this point, but dealt ith the matter i 2 pasage pusporting spond to an unelated Canadian argument concerting estoppel or sequiscence. ‘The Court ct ented: the relevance ofthat ease (Gnsbadarma] to the pretent ones however debs problems of rights over maritime ares differed in many sespece from thoeeof the present day. T {ise concerned territorial waters, whereas the prefentone consoras vast areas of seu that ave o Fecentiy come under the jurisdiction of the alacant Stats, The differences beeen the te even at reat that tis dial to esas 4 parallel Batson them: (CY Reports, 2984, P30 “or See, sot, Norway's use of the Diaish pleadings and orl argument in North Adantic Co Fisheries, inthe angio Noruegian Fisheries case, ICY Pleadings, 0h, 99. 265-73, 3389, 431, 3 See also Ainguiers and Ecrehos, ICY Pleadings, vl. 2 in which Feanae cits (p. 268) the UK plead in thesia Bondar cave and (pp. 232-3 3nd 365-7) os pleadings nthe Clipperton land cx *O8 1C7 Pleadings, 972, volt pp. 103.349. 307 simile contrat found inthe Acear Tests eases betveen the pleadings of Australia, wh felor extensively to arbitral awards (se above, 191), an those of New Zealand which make fee 2 feferences (ICJ Peednge, vol. 3, pp. 1819INTER-STATE ARBITRATION SINCE s45 7 make no reference to any arbitral awards,” although it is difficult to judge in each case whether this is due to an assessment that arbitral jurisprudence ‘was not relevant to the particular issues, to an assessment that arbitral juris- prudence was potentially relevant but of no weight, or to other factors. Doubtless those drafting pleadings prudently tend to include any legal materials which may be viewed as supporting the position they espouse, and those responding equally refer to such materials in controverting argu- ments based upon them. It is nevertheless significant that States respond- ing to the invocation of an arbitral award do not appear to challenge the general authority of such awards, but tend rather to offer different inter- pretations of awards,™* to distinguish them," or occasionally to argue that the law was erroneously stated or has since changed.*° It is also of interest to examine arbitral awards to see how far they expressly take account of the factors mentioned above—reliance on law, unanimity, status of arbitrators, compliance, impact on_publicists—in according weight to prior awards.**" If the assessment of the weight of a particular arbitral award were to be based on the additional factor of express references in later arbitral cases, most awards would weigh in as featherweight. And arbitrators rarely, if ever, mention the other factors “> eg. the pleadings in the Conditions of Admission, Assen, Haya deta Tome, Electret de Bey- auth Compan, Northern Camereans, Right of Pastage,Paistatd Prizners of War aad JCAO cases " Seo, eg the dcbate about the interpretation ofthe Abacos ward (Report of international Abad Ateards, Ol. 13, 9.9 (4986) 8 Nonaoyian Loans, IC7 Pleadings, vl. a, pp. 74208 151-3 "Soe, eu Pranes’saterpt to distinguish lend of Palmas by virtuc of differences between is {sets and those of the ease mbar in Minguore and Bors, IC] Pleadings, vel. t, pp. 363-9; and the aempts by Honduras to exphin the Schreck, Sabotage and Trail Smelir caves in Abia daeard ofthe ingof Span, £7 Pleadings, 0. 2, pp. 8477 Ses, ex, Canals tertment of Grsbadara, sbovs,n. 193; and Hondurs’ (Briggs!) response to Nicaroga's invocation af the Parr ate (othe efet tat thee is no gener corp of rls of pre shure in international fy), that ‘Much water has gone over the dam since «the Parker ease Ar Ural Atcard of he Ring of Spain, CF Pleadings, vol 2p. 102 Partie in thot IC} pleadings do occasionally make ference to these factors. Canada's ‘he contemporary authori ofthe Grisbadara asard with reapers to the US argument in Gullo Mae Iv been noted (a. 195, above). Init cep in rbtralclcard of the Kang of Span, Hondcaatiressed itsargument, that the Orinoco Steam Company ease (xg10)coeecty stated the lof the period tlaborstd atthe 1899 and too7 Hague conferences, by relerene to Ue ‘exceptional shorty ofthis fsa, atsbuted by Honduras both to its intsinie mert and to the quality nf the thre arbtetors (Pro [nor Lammaich, Auguste Beernsert and Gonsslo Quesada), all of whom fad participated inthe second Hogue conference: Pleadings, vol. 1, p. gor. (Nicaragua interpreted the Ornoca award die. nly bee dt not challenge is authority: Pleadings, volt, pp- Sort.) The eminence of petcsler bitrators is sometimes mentioned by State ecking to make ve of their awards, a0 ith relerencs to bluator Huber’ awards in Zit Ben Kins (Bapeslona Traction Peeing, vl. 153) and flats of Palmas (Nuclear Tests (ustralia x. France) Pleading, p. 32), telerences to afbitrator Hughes ‘ida regaed to the Taenavdrce award Cegeam Sea Continental Shalf Peang,p. 12), and eerences to abitetor Petrén with eqard tothe Lae Lanoue avaed (Nuclear Tests (using France) Plea ings, p. 229). Grease also eeferred tothe unity uf aa award (German Eternal Debts 9 factor felevant tose authority in egean Sea Camlinentl Shelf Peadinge, ps 27%. Belgians (in Barceona ‘Traian Pleadings, vo. 1, Observations and Conclusions, p. 134) mentioned that later exes had led cm the Delagoa Bay Railteay Campany case 23a precedent Bit the invocation of particular ltrs slvant tothe autorityof any avai sporadic sad generally somewhat feldental. They do no! nd. Exe any spatematie palters of ditinguishing between dierent sebtrl awards on the base that sine Ihave eater authority than others.233 DEVELOPMENTS IN DISPUTE SETTLEMENT: discussed above. ‘These patterns are readily apparent in the post-Seco ‘World War arbitral awards. References to PCIJ and IC] decisions are co mon, whereas references to earlier arbitral awards are unusual.“ As practical matter, this is a clear indication of the superior legal status of 1 forme ‘Of those awards referred to, the Island of Palmas case** occurs: frequently. The later air transport arbitrations refer to the earlier on Otherwise the cases mentioned seem a fairly disparate collection—Tacr 25 1932 Sweden-USA,* Lac Lanoux,?7? Anglo-French Continen 8 North Atlantic Fisheries,* The Carthage and The Manouba, Chamizal Tract*"' and so on. The tribunals making these references do 1 mention the status of the arbitrators, unanimity, compromise or co pliance, The type of use that is made of earlier arbitral decisions varies. So examples merely involve passing references to illustrate well-establist rules and principles. Some of the citations of arbitral decisions relate to ¢ mentary propositions for which authority is scarcely needed, as for instar that ‘in the absence of any agreement to the contrary, an international bunai has the right to decide as to its own jurisdiction and has the power interpret for this purpose the instruments which govern that jurisc tion’.*?* Other citations relate to very broad doctrines which may mitig or block the application of other rules of law. Examples include referen to the Cayuga Indians case on equitable considerations justifying, instance, looking behind the legal person to see who are the real benef aries,*#? and the brief mention in Lac Lanoux: of Tacna-Arica** es 2+ Such rolerenees are most commonly made by tribunal deciding any claims, such a4 the 1 US Claims Telbuneh, rather than tibanalsdeiding one ease. Not surprisingly, tibunas with ul cases eofer quite frequently to thee own jurisprudence Ss Tor contesting views on the vbjet,e- Lachs, le. it. above (a. 85), at pp. 37-54 ad Bre li, ibid sep 39 (arguing that there Is uo categorical dilferenes of authority between courts of (ration andthe PCI} and ICD) ts Loe. ct. abore (a 158). 25 Fegorts of Intemational Arbitron, vol 2, p. 934 (1935) = Tid arp. 1235 7 Loo, eit. sbove (0. 42), © Lge, et ebove (h. 14. > Reports of International ital Awards, vol. 11, ps 163 (940) se Tid pe 4495 963 Ibid p36 5 ndginead ofthe IC) inthe Natebohm cate, 1CJ Reports, 1952, p19, quoted sith spoon the separate opinion of Judge Onan in the [CAO Coane! cae, 1C7 Reports. 1072, at p88, (Glong with Phe Bete) in the disenting opinion of Judge Singh in the [CAO Counc! ease, + 2 Separate opinion of Judge Fitzmaurice the Barcelona Traction ease, 1CJ Reports 197 B ‘quoting the Cayuga Indian case, Reports of Imernaional ital Sears, vol. 8, p. 279 (2928 ‘Mine ad is alo cite inthe separate opinion of fudge Lacs inthe Aegean Sea Cotinental aes [09 Feports, 1978p. in support ofthe proposition that ‘no constuction [ofan internat {fatlament] may be cotertained whieh would imply that any provision was "not intenced vo haw Mlefite application” [Lot eit, above (a. 42); le. eit. above (n,325),INTER-STATE ARBITRATION SINCE 1945 9 example of discussion of the principle of good faith.**5 (As it turned out there was no doubt about the good faith of the parties in Lac Lanoux.) In other cases the tribunal relies on the decision as authoritative; it accepts the reasoning in the earlier ease as stating a legal rale or principle that it should apply in its own decision. ‘The Ray of Kutch tribunal referred repeatedly*"® to the dsland of Palmas award"? on the legal significance of maps and of acts of sovercignty. The cases of The Carthage and The Manouba®* are invoked as authority for the award of a declaratory judgment assatisfaction in the Rainbow Warrior decisions.""? Sometimes the reference is made to the earlier case explicitly in order to distinguish it; this necessarily involves treating the earlier case 2s authoritative.“ Or alternatively the reasoning in the earlier case may be referred to as mistaken." There is no clear pattern to be found in the type of reference to earlier decisions, Ttis also striking that references by arbitral tribunalsto textbooks and other academic writing are at least as common as references to arbitral decisions,” ‘Thus the earlier suggestion that textbooks may be used to assess the import- ance of particulararbitral awards receives some support: those arbitral awards, relied on by writers have an indirect impact on the arbitrators who turn to the textbooks, Not surprisingly, eases incorporated into textbooks have a greater chance of influencing the development of international law. Perhaps Article 38(1)(d) of the Statute of the Court understates the authority of publicists just as it does that of arbitral and judicial decisions.**** Finally, we shall try to assess the contribution of arbitral awards to par: ticular areas of the law. In some areas it is possible to argue that they were the most important material source of law. Thus, on the procedural law of 18 Reports of Intemaonal Aritral dscords, vol. 42, p- 281, at p. 307 (2987). L refered fo the Lae Lanous ease onthe inportance of good ith ner to auppor the propeition thatsThote sno negotiation ieah party a ether pany, insets omits on postion ad eeuses veer ontemplte any sltening or change: disveating opinion of Judge Gros in Libya Tunisie Continental Self EY Reports, 1983, 2 Lge tab (a! £4), at pp 88,436 1 Loe above (5-154). See abs the Land, Ioland and Marine Frontier case, loc. cit. above 0. 183b), The separate piston of Judge de Casto in Wortern Sahara, (C7 Reports, 975, pp- 08-2, tnidoses Huber’ eneral analy ofthe question of inestempoal lw Log et above (8.210). vy Igbo Bie raing by the UN Seeretary-General, 74 TLR 256 (:986), and inthe tibunalealing, 8s LLR at pp. 574-5 (2990) "The ftaly/US ir Transport abiteation (xs) (Reports of Fatemational bial lear, vol, 16, 81, at, 2) olered back to the USUFrance dir Transport abitaion-—on the significance of sb. Squat pectic ofthe partes for euyiterpretation™in order to dating instance the tribunal la Guinen Guinea-Bierau (le. st, above (a. $3), at p- 294) sisted ‘he approach adopted in UAIPrance Continental Skel a giving pont tothe equidistance ine su Tisza trae the pleading na amber af TC] eases: Se, eg, the pleadings bath the snd Norsay in the dngl-Norsegian Fisherier cate, of lbnis and partoulely the UK in the Corfu ‘Chavet exe, ax of Peru and particularly Colom nthe Ashen cate. Discussion of che authority af ‘vier in plenings closely parallel discussion of the authosty of arbitral ards: issparce are ome what neienta. tn uralAtcard of the King of Span, ICY Pleadings, va. p65, counsel for Hos: Adora (Guggesin) saggsntd that on the topic of mllity srbteal deciafona sere perhaps more limpnetant than the opinions of authors, ft his Wasa passing emare, BO See ale the Land, land and Maritime Frontier ease, lo. ct above (9-183). te cases nse130 DEVELOPMENTS IN DISPUTE SETTLEMENT: arbitration, including questions of nullity and revision, arbitral aware have played 2 crucial role. These issues have not arisen often in inter-Stat arbitration since the Second World War;* in most cases compliance wi hot a problem, But the awards in the Beagle Channel and Guinea-Bissar ‘Senegal cases were challenged by Argentina and Guinea-Bissau, each just fying its rejection of the award by arguing that the aveard was a nullity (eae also argued that the award was ‘non-existent’). The fundamental proble: with allegations of nullity and with requests for revision of arbitr wards, in the absence of any express provision for this in the arbitral agre ment, i the problem of the invocation and effective operation of suitab control mechanisms: in particular, which tribunal, if any, will have juri diction to decide such claims? This problem is especially serious for ad ihr tribunals, Under the ILC Model Rules, all allegations of nullity would | referred to the IC] if the parties did not agree on another tribunal. But practice the Avbitral Award of the King of Spain™® and Guinea-Bissa Senegal? cases are unusual in that in the former the parties express ‘agreed that the question of nullity might be referred by either of them the ICJ, and in the latter Senegal ultimately elected not to contest tl Court's jurisdiction under the Optional Clause in respect of Guine Bissau’s challenge to the award.** "The Beagle Channel case is more typical in that Argentina unilateral rejected the arbitral award, arguing that it was null and void because it di torted the Argentine case, included opinions on questions not submitted arbitration, contained contradictions between its arguments, faulty trea interpretation, geographical and historical errors, and showed Tack balance. None of these Argentine arguments scem very convincing relation to the traditional grounds of nullity established in earlier arbity practice, Chile rejected the Argentine declaration of nullity and said th the question should be referred to the IC]. 3° The tribunal found that ¢ compromis conferred no power on the parties to reject or purport to nulli 25 See Reisman, Nility and Reviion (s972);Oelers-Fea, Juiciat and Arbitral Decisions: \ ity and Noy Beenbacd od), Encylopedia of Public International Lae, vl. (981), Bet iEMduepacne, Aspects af the rlrantation of International Justice (2991), 3 P99 Se path the lngentnatChie (0966) (Reports of International Abita! Awards, vol 16, p.¢ ance Continental Shelf (937) (ports of international Arte Awards, vol 8, p ke titanate granted requests fo interpretations is both eases there ws provision in the arbi Suceanot for inteepctation, but not fr erton, of xn acital ard in oth cases the eburaet wecetenstve vow of what ip covered by interpretation, and commentators have suggested thot © ses eal allowed sevision inthe guise of interpretation. AS Far ducomion of the geawrl subject of formal and informal oateot mechanisms see Rest Systems of Conta laceration Adjndication and Arbitration: Breakdown and Repair (1993) WE} Reports, «980, 9.102 7 Lin, et above (68) 1 Neves dectartion of fadge Maye dat Ail 36(2 alone would not provide a generat b for he Court to ences juvodicton over challenges to ariel wvards (ibid. ap. 82), ‘Lge eit. above (8. $8), at pe 260. Toi ap. 277INTER-STATE ARBITRATION SINCE 1945 ge the award; such pronouncements were themselves nullities.3* Argentina maintained its rejection of the award and relations with Chile deteriorated until the Pope intervened. The papal mediation that finally resolved the disagreement implicitly (but not explicitly) upheld the arbitral award in that it did not modify the tribunal’s boundary line, but extended it and introduced new elements into the proposed settlement in order to facilitate Argentina's acceptance of the mediator's suggestions. ‘On another important procedural subject, interim measures, arbitral tri- bunals initially established the law.*2? But actual awards are rare: since the Second World War interim measures have been requested in only one inter- State arbitration and they were refused in that case." The Permanent Court of International Justice, the ICJ and other bodies including the Inter-American Court of Human Rights have developed a much more sub- stantial case law. ‘The Iran-US Claims Tribunal has also been faced with many requests for interim measures; these have not been awarded in any inter-State case,7%5 but the Tribunal has referred to international law and to the jurisprudence of the International Court in making its awards. ‘The mass of arbitral awards dating back to the Jay Treaty substantially created international law on State responsibility for injury to aliens (includ ing the local remedies rule and nationality of claims). Other sources, such as diplomatic practice, played a complementary role, but the detailed rules evolved through arbitral decisions. But on this topic the dominant role of arbitral awards has not been sustained since the Second World War. The International Court of Justice has made important decisions on local rem- edies and nationality of claims. Regional human rights courts have devel- oped a coherent jurisprudence on certain cognate issues. As regards the substantive standards of treatment of aliens, the traditional jurisprudence has been partly overtaken by the emergence of new States doubtful about the international standards imposed in the colonial era, the increase in bila- teral treaties on this question and the development of the law of human rights.” Nevertheless, certain aspects of the law of State responsibility and of remedies are likely incidents of international litigation, and arbitral decisions have remained important sources as to some of these. For instance, the principal sources establishing the propriety of orders for monetary compensation where there has been moral and legal damage but 2 thi st pps 285, 283 2 fnternatonad Legal Hatriats, 24 (4985). 5 And sce E, Lauterpac in Mélanges Michel Vir P39 acy Intern Measures in the Hague Court (1085); OellersFrahi, ‘otsrea Measures of Protection, in Beenbardt (ed), Bteycopedia of Puli fntermatonal Late, vl. 1 (2981) . 69. SUN Teibunal for Libys Appieton by lay for Interim Measures (vgs), 25 He 517 Although they were requested im Case Bs (av. US), 32 CTR 405, and in Coser Ay (5 CTR vaayand Aus (15 CTR 179) “Ses Chron, Zelschift fir austanasches fetches Reche une Vkereckt 46 (988), p. 365. ‘out ti of interest thatthe Iras-U'S Claims Tribunal hes dealt with many claims a the tea ‘tonal aliens involving Ste eesponsbity foe ijuryig DEVELOPMENTS IN DISPUTE SETTLEMENT: no material damage are the France/New Zealand cases*** and the I"m Alon case (1935), along with requests made in the Manouba and Carthage case (4913). The I’m Alone and the two requests were referred to by Judge J sup in his separate opinion in the South West Africa (1962) case to suppor his view that States have claimed a legal interest in the general observanc of the rules of international law.** Again, arbitral awards have played @ crucial role in the creation of inter national law on acquisition of territory and boundary delimitation. "This i the second largest category within arbitral jurisprudence. Although Stat practice played some role, the nature of the subject-matter—the uniquenet ff each geographical and historical situation—meant that arbitral decisior were necessary for the creation of general rules. The continuing importanc of the Island of Palmas case is obvious in the post-Second World We awards." “The same process of law-creation by tribunals can be seen in the develop ment of the law of maritime boundary delimitation by the IC]. The arbitr tribunals in the Anglo-French Continental Shelf and Guinea/Guinea-Bissa cases played a part in this process. Although the impact of the Anglo-Frenc Continental Shelf avvard on subsequent cases is obvious, the IC] in Tun siaiLibya**" and LibyalMalta** paid significantly less express attention 1 this arbitral award than to its own jurisprudence. Similarly, on questions of treaty interpretation, the nature of the subjec matter gave arbitral decisions a central role in the evolution of the law. Br the early arbitral awards have now been supplemented—even superseded- by the large jurisprudence of the PCJ] and the IC] (On these three topics, State responsibility, territorial disputes and tre interpretation, there is 2 mass of arbitral jurisprudence and 2 significa body of judicial decisions. Similarly the various ad hoc ait transport ark tral tribunals have taken trouble to develop a coherent jurisprudence. B it is also possible that a single arbitral decision may play a crucial role the development of international law. Even where there is no shortage State practice, an arbitral award may have an important crystallizing re and will be ritually invoked by States and writers to support their lee claims. Thus the Naulilaa case? on forcible reprisals and the US/Fran Air Services Agreement (1978) case™# on non-forcible counter-measur formulate clear rules on the basis of inevitably more diffuse State practic fine War inthe fist Tena in Ue third eas ee “In de third ca, France admited thatthe UN Seestary cease (1986) anaded monetary compensation for moral damage, sn fat such amar could be validly madoe $2 TLR 575-5, 9 1Cy Reports, 1953, B25, Loe. cit above (a. 154) IGF Reports, 1982, p18 1G} Reports, 208s, P.#3 Ss Reports of tntemational rbitral lands, sl, 2. t053 (1938) 2 Reports of Intemmaionel arbitral Aecorde, vl. 18, p- 42%, Rosenne, Developments ithe Lat Treaties 154501086 (1989). at. 5: oot important madern discussion” uf 8 {oreible eountar- measures inthe st of eats.{ { | | INTER-STATE ARBITRATION SINCE 1945 33 And where there isa gap in international law—as there was and to some extent still ison State responsibility in relation to environmental matters—the one or two relevant cases will be solemnly invoked even if the actual decisionsin those cases cannot support the weight attached to them. Thus, carly writing on international responsibility for environmental harm invariably relied on the distinctly limited Gut Dane°*8 and Trail Smelter cases to support the exis- tence of a rule establishing State responsibility for transboundary pollution. ‘One further contribution of arbitral decisions can be to give weight to 2 judicial decision, treaty, resolution or other item of source material which might otherwise be ignored as an aberration or outlier. In his separate opinion in Barcelona Traction, for instance, Judge Jessup cites the Flegen- heimer casc**” as reinforcing the link principle as a general principle of law and not merely an ad hoc rule for the decision of the Nottebolim case. Similarly the arbitral tribunal in the third Rainbow Warrior case refers extensively and approvingly to the second report of Professor Arangio-Ruiz to the International Law Commission on part two of the draft articles on State responsibility. V. Conciusion ‘The development of inter-State arbitration, and that of internation: adjudication and arbitration generally, is often taken as one gauge of the efficacy of the rule of law in the international systern. In the period since 1945, provisions for arbitration as one of several dis- pute settlement options have frequently been included in treaties dealing with other matters. The incidence of resort to arbitration in specific dis- putes in this period has been moderate but steady; the awards rendered have made significant contributions to dispute settlement, especially but ‘aot only on boundary or territorial issues. Other than in the aftermath of wat, almost all arbitral tribunals which have operated successfully since 1945 have done so on the basis of special agreement. Nevertheless, in recent, years there has been some evidence of an increased willingness of many States to enter into binding obligations to accept third-party settlement, °° and both advance commitments and special agreements to arbitrate dis- putes may be important forms of assurance if international regulatory Lee. it above (0.63) Use. cit above (a 57). The Trail Smelter awards are ce seth apparent approval in the sepa scopinion of Judge de Catto inthe Nuclear Tests eats, oe ct, above (8.73), st pp. 388-3, ~ smerican Tovwnal of International Late, 53 (9958) . 44. On the suber point set Brows: Principles of Pre Intemational Laz (ath ed, 1999), 8 Pp 422 Loc. ct. above (a. £78), at p. 186, 7 $3 TLR 499 (1999). 1 Ses, eg the CSCE's Stochhola Convention on Conciliation and Abiteaion of tog (providing for aebitraton on the bass of advance reciprocal declarations or al hae ageesment), and the provision lor directed conciliation adapted by the CSCE Council Steckhsin meeting in December 1gp2134 DEVELOPMENTS IN DISPUTE SETTLEMENT: activity is to become more effective.75* It is to be expected that linkag’ between purely inter-State dispute settlement and other forms of tran national dispute settlement will grow in importance, particularly in specia ized fields such as international trade, investment, communications ar environmental issues, In both its purely public and its hybrid forms, it is be expected that the institution of inter-State arbitration will continue play a significant role in international dispute settlement and in the deve ‘opment of international law. 251 "The provision for non-excdable binding arbitration in the rogt Environmental Protection Ps tocol tothe Antarctic Treaty appears ta be inirstive nf anew atcode, x last in specaized areas (1 text, see Intemational Lge Materials, 30 (1992), p. 1461.) This is moce sweeping than the comp provisions concerning compulsory dispute settlement inthe 1982 Convention on the Law ofthe 3 Sind representa ao important development from Uhe +93) Basle Convention on the Conte of Trat ‘boundary Movement of Hszardove Wastes and Thi Disposal, which simply allows States parties ‘opt in toa sytem of compulzory arbteation, or the to86 Convention on Barly Notation ofa Nucle ‘Accident, under which States say declare that she provisions for compulsory setlement do not apply them. The inereaeedsilingnes of the States of ceatal Europe and the former USSR o accept cat bey thindeparyvetlmeent sone factor, but not the only oe, i is he