Reflections on the downfall of public international arbitration in the 20th century
The purpose of this thesis is to demonstrate the pattern of the rise and fall of inter-state arbitration as a means of international dispute settlement through the reflection of the legal doctrine over the past 100 years. The discussion will touch upon a number of basic issues related to the public international arbitral sector, such as the true nature of arbitration, as well as the origins of current-day arbitral practice, arbitral procedure, state practice, the legal and non-legal dispute dichotomy, jurisdiction of international tribunals, and the historical development of general inter-state arbitral mechanisms in the 20th century. Our examination will be conducted mainly in the light of the provisions of the various international instruments concerned with the peaceful settlement of international disputes adopted in the past century and also the views of leading legal writers and scholars on various aspects of the international arbitral process and state practice. It is interesting to note that despite the dramatic change in the level of utilisation of inter-state arbitration, within the domain of academic research, studies concerning the area of inter-state arbitration are rather scarce; the issue has been neglected. Instead, interest has shifted almost totally to arbitration in other fields and recent studies on arbitration are devoted to the settlement of disputes between states, commercial concerns and individuals. Public international arbitration in general is a means of dispute resolution that was able to deliver prior to the current decline in tribunal utilisation and is still capable of fulfilling an important role in the area of peaceful settlement of international disputes, despite the significant changes that have occurred to the fabric of the international community over the past 100 years and the various ideological, cultural and religious diversities that have emerged as a result (the Iran - USA Claims tribunal and the two awards in the Hanish Island arbitration are examples). However, it may be that its image needs to be polished and re-introduced (hence, a few suggestions as to possible ways of revitalising the public international arbitral sector are provided at the end of the general conclusion in Chapter Six). The study is divided into six main chapters, each covering a certain aspect of the issue under consideration. The first chapter is intended to provide the reader with a general background on the concept and nature of international arbitration, the origins of current arbitral practice and its historical evolution starting from the 19th century, as well as the main fundamental features of international arbitration which have made it an attractive means of settlement to states, namely, the parties' influence over the composition of the tribunal; their freedom in specifying the law(s) applicable; their freedom to specify the basic considerations with regard to the award; the possibility of secrecy: and the non-intervention by third parties into proceedings. Chapter Two will attempt to provide a general background on the rise and fall of international arbitral practice by reviewing the momentum of arbitral practice in the last two centuries in the domains of both the number of disputes submitted to arbitration during that period and also arbitral treaty practice, which has tailed off following the 2nd World War. The discussion in this respect will also include an examination of a number of possible factors behind states' disinclination to resort to arbitration, namely, the argument regarding the justiciability or otherwise of disputes; previous negative experiences with arbitration; the avoidance of the reaction of internal political factions within the state in the case of a non-favourable award; and the nature of dispute settlement by legal means. The examination will also reflect upon certain aspects of Soviet international law and practice concerning arbitration and also the practice of the so-called developing states in Africa and Asia. Chapter Three will be totally devoted to the state consent requirement. The discussion in this respect will examine the principle of state sovereignty with regard to its origins; its main internal and external aspects; and the compatibility of the granting of consent by states for the submission of their disputes to international tribunals with the doctrine of state sovereignty. Light will also be shed on the significance of state consent in the field of the peaceful settlement of disputes, and how consent to arbitration is expressed. In Chapter Four, light will be shed on the concept and nature of compulsory arbitration; the legal and non-legal dispute dichotomy with regard to its origins, theoretical dimensions and its implementation in actual dispute settlement and treaty practice. The discussion will also reflect on the compulsory jurisdiction of the ICJ by first discussing of all the voluntary means in which consent is expressed to the ICJ, and then examining the Court's compulsory jurisdiction under the Optional Clause. Chapter Five will focus on the historical background and procedural aspects of the past general inter-state arbitral mechanisms. Each chapter will be started with an introduction and followed by a conclusion and endnotes. A general summary and conclusion will follow in a separate chapter at the end of the thesis. The central topic of this thesis is arbitration; however, where necessary, our discussion may also include other means of dispute resolution from among those listed in Art. 33(1) of the UN Charter, especially, international adjudication via the ICJ. In this respect, since the dicta of the ICJ and arbitral tribunals on the issue of state consent to the jurisdiction of international tribunals are usually referred to by writers on consent to arbitration in an amalgamated matter, without distinction between the two areas, a similar approach will be adopted in our discussion on the issue. However, a distinction will be made with regard to the procedural and practical aspects of the granting of consent by states to each means. The discussion in the thesis is confined solely to the area of inter-state arbitration involving public international law disputes between states only. However, where relevant, mention will also be made of certain examples of disputes involving states and non- state parties.