With war raging between Russia and Ukraine and with no end in sight and no public negotiation going on between the two parties, it is worth noting that September 14, 2022, marks the 150th anniversary of a successful third-party arbitration between Great Britain and the United States. The very act of accepting arbitration by the two sides in 1871 accelerated the custom of settling contentions between countries by arbitration rather than resorting to violence and war.
When Americans think of Alabama, they often think of a state in the South that was notorious in the 1960s and 70s for civil rights confrontations. Among the most memorable was when Martin Luther King Jr. led thousands of demonstrators on a five-day march from Selma, Alabama, to the state capitol Montgomery in March 1965 to promote civil and political rights for Black Americans. A previous march had ended with marchers tear gassed and attacked with clubs and bullwhips by local police. More than 50 marchers were hospitalized.
If Americans think of Alabama as a Southern state, when public international lawyers and members of the International Geneva community think of Alabama, they think of the Alabama Room in the City Hall of Geneva where the first third-party arbitration took place following the American Civil War. The Room was also the venue for the 1864 signing of the Geneva Convention, the founding act of the International Committee of the Red Cross.
During the American Civil War, the British had an ambiguous position towards the conflict. While they were officially neutral, they continued to supply matériel to the Confederacy via ports in the Caribbean and to receive precious cotton in return.
But the South needed more than matériel and ordered ships from England as well, a clear violation of its neutral obligations. One of the ships ordered, later christened the Alabama, put into the French port of Cherbourg in 1864 for repairs at the same time the Federal cruiser Kearsarge positioned itself outside the port. A brief naval battle ensued with considerable damage done to the British-made ship.
At the end of the Civil War, efforts were made by the U.S. to try to make up for losses suffered during the War by making Britain pay for damages. In 1871, the Treaty of Washington was signed by both parties which established an Arbitration Tribunal in Geneva in neutral Switzerland. Great Britain also officially expressed regrets for the Alabama and other ships that had violated its neutrality.
Before five arbiters, three neutrals and representatives of the two parties, the United States demanded compensation for violations of neutrality by British built ships such as the Alabama. The arbiters’ final decision was that Great Britain, the major power of the day, would pay the United States $15,500,000, which it did.
A semi-official history of the Arbitration recounts: “On the evening of September 7…the Government of the Republic and Canton of Geneva gave a Gala Dinner for the members of the Tribunal…Four days later, the Swiss Federal authorities in turn gave a reception for the Tribunal…The following day, they were taken on an excursion to Interlaken and given an Official dinner in Bern, attended by the Diplomatic Corps.” The fact that the two parties were contesting in an arbitration did not negate a spirit of civility.
The Alabama decision set several precedents about neutrality. Most important, it set a precedent about how conflicts between countries could be settled. Following the Alabama decision, a Permanent Court of Arbitration was created by the Hague Peace Conference of 1899, which was followed by the Permanent Court of International Justice and the current International Court of Justice. If both sides agree, third party arbitration has become a customary means of settling disputes between countries.
An excellent example of how arbitration can work between often belligerent countries, and one that also took place in the Alabama Room, was the Taba case between Israel and Egypt. Despite obvious tensions between the two countries, they agreed to arbitration over a sliver on land.
The contention was over a small area in the Sinai Peninsula known as Taba, which consisted of a 5-star hotel, and a vacation village on the shore of the Gulf of Aqaba. The 1988 decision was awarded to Egypt which had considerable psychological benefits for the winning side as well as increased international prestige.
The press reported that Egyptian President Hosni Mubarak saw the Taba dispute and resolution as a model of cooperation between Israel and the countries of the region, especially Jordan. “World peace will never be an impossible aim. It is the noble aim which can be reached,” Mubarak said as he raised the black, red and white Egyptian flag over Taba in a heavily reported ceremony as Egypt took control of the area.
The importance of the Taba decision as an example of how to settle disputes should not be underestimated. The media for both sides were omnipresent in Geneva at the time as if Israel and Egypt were competing for the Champions League football title – The peaceful settlement and Israel’s acceptance were also internationally reported. Israel received $37 million in compensation for Taba’s main hotel.
(I was working for the Associated Press in Geneva in 1988 and was overwhelmed with requests from outside media to explain the rather complicated, legalistic ruling about the border issue.)
The history of the Alabama arbitration, like the Taba case, are examples of how disputes between countries can be settled. Although Great Britain and the United States were not at war, it was a commercial dispute, the 150th anniversary of the Alabama decision is a reminder of arbitration’s potential. An eminent jurist noted about the case: “Great Britain, to its credit, accepted what amounted to an adjudication of the positive legal consequences flowing implicitly from a proclamation of neutrality. In doing so, it enabled the Alabama Arbitration not only to reaffirm the principles of International Law, but also, while defining the responsibilities of the Sovereign State, to make them effective. That is one very good reason for celebrating the Alabama Arbitration, if only because it enables a peaceful solution to be found to problems which otherwise could only be resolved by war.”
Is anyone listening in Moscow or Kyiv?