One hundred years ago international arbitration was viewed as the great hope for world peace. No international tribunals were yet in existence, but the Permanent Court of Arbitration was up and running and having an extremely successful first decade. There was one key problem with the world of arbitration at that time: the corpus of international law. There were effective procedures for resolving international disputes, but there was inadequate law to resolve those disputes.
That dilemma was nicely summarized by Georg Hagerup in the Nobel Peace Prize Lecture that he gave on August 24, 1912 on behalf of the Institute of International Law:
It is my opinion that the truly pacifistic movement has no more dangerous enemies than those who believe that they can anticipate natural developments and who try to persuade people to tackle the lofty summit of universal peace by a sort of “flight of Icarus” which would inevitably end, I fear, as sadly as did Icarus himself…. Some people are convinced that universal compulsory arbitration in international relations is such an aircraft, just the one to carry us safely into the reign of perpetual peace. I must say frankly that this is a fatal misconception far removed from the true facts of international life. No one will deny that arbitration is an effective instrument for settling many kinds of international disputes, and the ever increasing use of it in our time is one of the most heartening and most promising facets of modern international life…. We must not lose sight of the fact that international jurisdiction must necessarily take the same role in relations between nations that tribunals play in disputes between individuals. Such jurisdiction is a means of resolving questions of law. However, the time is still a long way off when all civilized nations, large as well as small, will be ready to submit to arbitration questions of interests, especially of vitally important interests…. Those who do not realize that, in the present state of mankind, arbitration is incapable of avoiding or resolving large-scale international conflicts of interests, lay themselves open to cruel disillusionment. Not until the day when international life in its entirety is governed by the principles of law and justice, will it be possible to apply arbitration, universally and without exception, to the relations between nations…. The advance of international law is the basis necessary to all efforts for peace and justice in international relations.
That quote is fascinating to me, precisely because it seems we have now reached the point in history when virtually every dispute in international relations can be resolved by recourse to law through international dispute resolution. Can one think of an arena of international relations in which there is not some law on point that an international adjudicator can marshal to resolve the dispute? It may be treaty law, customary international law, general principles derived from municipal law, or domestic law. There are ambiguities and inconsistencies to be sure, but a complete absence of law?
Every private or public agreement that commits the parties to resolve international disputes peacefully through an adjudicative process bears witness to the confidence that law exists and can be called up to resolve the dispute. Every arbitration appointment is a quiet voice of confidence by the arbitrator that there is some law he or she can call upon to govern the dispute. And every decision reached by that arbitrator is one more stitch in the fabric of international law.
That is a remarkable achievement in the spate of a century. In the course of a few generations we have come from a world where international relations was principally governed by interests to a world where it is principally governed by law. Not every dispute is resolved peacefully, but almost every dispute could be resolved peacefully by recourse to adjudicators applying law to facts.
A century ago the wings of international relations were made of wax, and the fate of Icarus was cruel disillusionment. Now those wings are tightly knit together through the bonds of law, and perhaps there is a new ending to the story. The modern-day Icarus is overjoyed as the wind rushes through his hair and he beats his wings wildly as he ascends higher and higher. He cannot hear his father far below yelling, “Stop, stop you are going to high! Your wings will melt!” He feels the warmth of the sun in his face. His wings hold firm.
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Would that the wings of Icarus were so secure.
On the question whether there are any gaps in public international law – the problem of non liquet – I think that this has been resolved to the satisfaction of most. As Kelsen and H. Lauterpacht both said, IL is a complete system in the sense that there is always an answer – even if the answer is sometimes along the lines of the “SS Lotus” principle that, in the absence of a rule forbidding a state from doing something, it can do what it likes.
But what Hagerup was referring to was the doctrine that there are some matters which so concern the “vital interests” of states that they are not susceptible of settlement by int. arbitration or adjudication. Although that doctrine is no longer much propounded in that form, self-evidently there are questions – many, many questions – that states are politically unwilling to submit to adjudication or arbitration. Therefore, for instance, there is virtually no state in the world today that has committed itself without exception or reservation to submit generally to the jurisdiction of the International Court of Justice.
If, bearing in mind the website on which Roger Alford’s comment appeared, he really meant to confine himself to international investment arbitration, I can see that Icarus is in somewhat better shape than in the wider context. But I fear that it is probably a bit optimistic to say that there is no rough weather ahead, and would-be underwriters of Icarus’ voyage should probably remain cautious.
You are correct that the thrust of my post was about the absence of international law and that we have largely resolved that issue. You are also correct that Hagerup was talking not just about that, but a larger problem of the reluctance of states to submit questions of great national interest to peaceful settlement.
I agree that states continue to be reluctant to resolve matters of “vital interest” to international arbitration and in this respect we should remain more cautious.
But I have little doubt that the universe of such matters is smaller than it was a century ago. A hundred years ago nations went to war over the failure to pay creditors. In 1902, Venezuelan ports were bombarded by German and British warships because of Venezuela’s failure to pay its loans. It was considered a major achievement when Roosevelt, by threat of force, convinced the warring parties to resolve that dispute through the PCA. Today, with a country like, say, Argentina the obvious solution to credit or investment problems is ICSID arbitration.
As for the ICJ and the general disuse of compulsory jurisdiction, I’m not sure this proves the point that states are unwilling to resolve their disputes by recourse to international dispute resolution. There are many avenues for such resolution, and many variations of dispute resolution, including negotiation, mediation, arbitration, and international litigation. If one asks whether the vast majority of matters that are of vital national interest are resolved peacefully rather than by force, I think the answer is clearly yes. That is a vast improvement in the course of a century.