August 23, 2013
One of the challenges to those who advocate for an anarchic or a decentralized political order of society is that of conflict resolution. Critics of anarchy will often claim that there must be some monopoly final arbiter – one accepted as the final voice if a dispute cannot otherwise be peacefully resolved. Of course, such thinking can only lead to the conclusion of a world government, a point lost on many such critics.
Those advocating for a smaller state suggest that this need not be so, instead offering private and decentralized arbitration as an alternative. Such suggestions are often deemed to be rather naïve by those who can only see resolution through a monopoly force over a geographic area and the threat of military engagement if the dispute involves another state.
Well, not so fast. There was a time, throughout the nineteenth century, when countries in the west often turned to arbitration for the successful resolution of international disputes. The United States and Great Britain, not on friendly terms throughout much of the century, on several occasions turned to international arbitration as a means of resolving conflict. While obviously not a perfect example of private governance methods, this historic reality offers some possibilities of importance to those who favor both decentralized government and peace.
Not surprisingly, this history of successful arbitration via decentralized systems in diffusing international disputes is lost in modern thinking, where centralizing national and international structures are looked to for salvation in such disputes, and – like central banks are to bankers – such agencies offer an oversized opportunity for influence to lawyers who would otherwise have to compete in a less politicized structure. From “International Law and the Nineteenth Century: History of an Illusion,” by David Kennedy:
I have asked numerous international lawyers what the nineteenth century means to them, what were its contributions, which of its insights and contributions remain relevant, and how did that discipline differ from our own. For today’s international lawyer, the nineteenth century seems long ago and far away, in many ways more distant from current problems and reflections that the great publicists of the seventeenth and eighteenth centuries….
The system is forgotten – in a way, as if it was the “Dark Ages” of the legal profession. It also seems to have been a system more effective at keeping peace:
To understand the nineteenth century’s contributions to the field, we must start with this gap, this forgetfulness, and with the thin factual and doctrinal traces which remain from what was a comparatively peaceful and law abiding century when compared to our own. (emphasis added)
W.T. Stead touches on this issue in a few short pages in his book, The Americanization of the World. I will supplement his comments with other sources in order to paint a more complete picture of this supposedly naïve solution.
Stead offers several examples of disputes between the United States and Britain that were resolved by third-party arbitration. All page references are to Stead’s book.
The first arbitration between the [United States and Great Britain] took place in 1816, when a dispute arose about the St. Croix River, and the Lake boundaries. (Page 249) In 1827 a question about the northeastern boundary of the United States was referred to the arbitration of the King of the Netherlands. (Page 250)
Three Commissions were established pursuant to the Treaty of Ghent – the treaty that brought to close the War of 1812 – to include resolution of the above-mentioned boundary disputes:
One commission tried to determine boundaries between British territory and the United States from the St. Lawrence River to the Lake of the Woods; it agreed upon a boundary through the Great Lakes but failed to determine the line from Lake Superior to the Lake of the Woods. The third commission was supposed to decide the boundary from the St. Croix to the St. Lawrence, but it failed to reach accord.
As a means to resolve the disputes, the matters were referred to arbitration:
The two governments thereupon referred the dispute to William I of the Netherlands. That monarch failed to find a clear basis for a decision but in 1831 made an award anyway, giving the United States and Britain what he believed to be equitable shares of a wilderness. The United States refused to accept this award, protesting that the king had not acted in accord with the agreement referring the controversy to him. While arbitration had failed in this instance, the case was of considerable importance, for it clearly established the principle that arbitrators should abide by the terms of a compromis or other preliminary agreements.
The matter was later resolved via the Webster-Ashburton Treaty in 1842.
Property to be Returned After the War of 1812
…a question arising out of the Treaty of Ghent was referred to the arbitration of the Emperor of Russia. (Page 249)
What was the dispute?
The United States and Britain meanwhile had one other arbitration in connection with the Treaty of Ghent. The two powers were supposed to restore all property, both public and private, that they had seized from each other during the War of 1812. The treaty specifically mentioned slaves, but the British failed to return all American slaves under their jurisdiction at the close of hostilities. After many protests from Washington, British leaders agreed that an arbitrator should deal with the matter, and the two governments referred their dispute to Alexander I of Russia. The czar decided that Britain had failed to meet its obligations and should pay an indemnity. Upon his recommendation the United States and Britain concluded a convention setting up a commission to decide the amount due the United States. After elaborate proceedings, the commissioners decided that the indemnity should be $1,204,960, and, in a convention concluded 13 November 1826, the British government accepted this decision.
In 1853 a dispute about some liberated slaves was settled by arbitration…. (Page 250)
This dispute is known as the Creole Case:
The Creole case was the result of an American slave revolt in November 1841 on board the Creole, a ship involved in the United States coastwise slave trade. As 128 slaves gained freedom after the rebels ordered the ship sailed to Nassau, it has been termed the “most successful slave revolt in US history”. Two persons died as a result of the revolt, a black slave and a white slave trader.
Great Britain had abolished slavery effective 1834; its officials in the Bahamas ruled that most of the slaves on the Creole were freed after arrival there, if they chose to stay. Officials detained the 19 men who rebelled on ship until the Admiralty Court of Nassau held a special session in April 1842 to consider charges of piracy against them. The Court ruled that the men had been illegally held in slavery and had the right to use force to gain freedom; they were not seeking private gain. The 17 survivors were also released to freedom (two had died in the interval).
When the Creole reached New Orleans in December 1841 with three women and two child slaves aboard, Southerners were outraged about the loss of “property.” Relations between the United States and Britain were strained for a time. The incident occurred during negotiations for the Webster-Ashburton Treaty of 1842 but was not directly addressed. The parties settled on seven crimes qualifying for extradition in the treaty; they did not include slave revolts. Eventually claims from the Creole case and two other US ships were covered in a claims treaty of 1853 between the US and UK, for which an arbitration commission awarded settlements in 1855 against each nation, dating to 1814. MORE