The Alabama Arbitration: A Landmark in International Law | Summaries Law

Alabama Arbitration

A.Background to the Arbitration

1The Alabama Arbitration took place in Geneva in 1871 to resolve claims made by the

United States (‘US’) against Great Britain arising from Britain’s conduct as a neutral during

theAmerican Civil War (1861–65). These claims had embittered relations between the two

countries and led to threats of war. Thearbitrationwas conducted by an international tribunal

and culminated in an award against Great Britain of US$15,500,000 in gold, an enormous

sum by the budgetary standards of the day. The award was duly honoured.

2Following the outbreak of war on 13 April 1861, President Lincoln promptly declared

ablockadeof allportsin the seceding Confederate states. The Confederate states had an

urgent need of ships to break this blockade, to permit the import of munitions and attack

northern shipping, but lacked any significant navy, merchant marine or shipbuilding capacity.

To make good their deficiency they sent agents to Europe to commission and buy ships for

use aswarshipsagainst the North. A number of ships were acquired in this way. But two are

of particular importance. The first, built in Liverpool under the deliberately misleading name

Oreto, was based on the design of a Royal Navy gunboat, adapted to give greater speed and

to enable it to stay at sea longer. The second, built in Birkenhead under the misleading name

Enrica, was designed and built as a warship, it had a lead-lined magazine, and was unsuitable

for mercantile use. Despite the attempted disguise, American spies appreciated that these

ships were intended for the Confederate service, a fact reported to the US minister in London,

Charles Francis Adams, who made urgent representations to the British authorities asking

that the vessels be detained. But in the first case the foreign secretary said there was no

evidence to warrant detention, and in the second the vessel sailed before instructions to detain

were received.

3In neither case was the vessel provided with arms or ammunition within Britain or British

waters. The Oreto sailed to Nassau in the Bahamas and, although seized, was released

following a court judgment. It then sailed to a deserted island 60 miles from Nassau, received

its armament, and changed its name to Florida. It then preyed on northern shipping, capturing

about 38 merchant ships, until it was captured by a US warship in October 1864. The Enrica

sailed from Liverpool for the Azores, where it received its guns, ammunition, captain and

crew. It changed its name to Alabama, the name which it made notorious, and sailed all over

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Alabama Arbitration A. Background to the Arbitration 1 The Alabama Arbitration took place in Geneva in 1871 to resolve claims made by the United States (‘US’) against Great Britain arising from Britain’s conduct as a neutral during the American Civil War (1861–65). These claims had embittered relations between the two countries and led to threats of war. The arbitration was conducted by an international tribunal and culminated in an award against Great Britain of US$15,500,000 in gold, an enormous sum by the budgetary standards of the day. The award was duly honoured. 2 Following the outbreak of war on 13 April 1861, President Lincoln promptly declared a blockade of all ports in the seceding Confederate states. The Confederate states had an urgent need of ships to break this blockade, to permit the import of munitions and attack northern shipping, but lacked any significant navy, merchant marine or shipbuilding capacity. To make good their deficiency they sent agents to Europe to commission and buy ships for use as warships against the North. A number of ships were acquired in this way. But two are of particular importance. The first, built in Liverpool under the deliberately misleading name Oreto, was based on the design of a Royal Navy gunboat, adapted to give greater speed and to enable it to stay at sea longer. The second, built in Birkenhead under the misleading name Enrica, was designed and built as a warship, it had a lead-lined magazine, and was unsuitable for mercantile use. Despite the attempted disguise, American spies appreciated that these ships were intended for the Confederate service, a fact reported to the US minister in London, Charles Francis Adams, who made urgent representations to the British authorities asking that the vessels be detained. But in the first case the foreign secretary said there was no evidence to warrant detention, and in the second the vessel sailed before instructions to detain were received. 3 In neither case was the vessel provided with arms or ammunition within Britain or British waters. The Oreto sailed to Nassau in the Bahamas and, although seized, was released following a court judgment. It then sailed to a deserted island 60 miles from Nassau, received its armament, and changed its name to Florida. It then preyed on northern shipping, capturing about 38 merchant ships, until it was captured by a US warship in October 1864. The Enrica sailed from Liverpool for the Azores, where it received its guns, ammunition, captain and crew. It changed its name to Alabama, the name which it made notorious, and sailed all over

the world attacking US vessels, of which it burned or sank 64 before it was itself sunk off Cherbourg in June 1864. 4 Very shortly after the war began, the British government had, on 13 May 1861, made a proclamation recognizing the Confederates as belligerents and declaring British neutrality. The domestic statute governing Britain’s duty as a neutral was the Foreign Enlistment Act 1819 (UK), an act passed to restrain support for Spain’s South American colonies in their struggle for independence. It was made an offence to enlist in the naval or military forces of a foreign State without leave. It was also, by s 7, made an offence to equip or arm any vessel to be used by any foreign state in hostilities against a friendly foreign state. The section did not expressly refer to building a vessel not equipped or armed for war, and there was doubt whether this was covered. The Confederates acted on legal advice that it was not, and on the only occasions when the issue was tested in court the British government lost: in Nassau, as recounted above, and when, later, a vessel named the Alexandra was seized. Adams insisted that if the Act inhibited effective action to detain vessels such as the Alabama and the Florida it should be amended, but this was not done until 1870. 5 After the end of the war diplomatic attempts were made to resolve the Alabama claims and other disputes between the US and Britain, and in January 1869 the American minister in London and the British government signed a convention for resolving the claims. But the convention was rejected by the US Senate with a single dissentient vote in April 1869, following a devastating attack on it by Senator Sumner. In his speech he distinguished between direct claims for loss of ships and property caused by the Alabama and other vessels, which he estimated at US$15 million, and what became known as the indirect claims. These claims were for the increased cost of marine insurance, diminution in the American carrying trade, loss of import and export business and economic growth, and the cost of suppressing the rebellion during the two-year period by which the vessels’depredations had lengthened the war. Sumner valued the indirect claims at US$2 billion dollars, and was strongly supported by American public opinion. B. The Treaty of Washington A change in the political climate in both countries led to agreement in early 1871 that a joint commission be established to resolve all disputes between the US, Britain and Canada. The commission, with a very distinguished membership on both sides, held a series of meetings in the spring of 1871, dealing first with Canada, then with the Alabama claims. Agreement on a

There was nothing in the Treaty of Washington to exclude the indirect claims from the arbitrators’ consideration, and American opinion would not have tolerated their exclusion. But the British believed they had been excluded, and were shocked to find that in the US case all the claims advanced by Senator Sumner were relied on. The British would not consent to the arbitrators considering these claims. The Americans insisted they should. When the arbitrators and the parties convened in Geneva on 15 June 1872 the future of the arbitration was in doubt. Some days of intense negotiation followed, culminating in a statement read by Sclopis with the agreement of both sides on 19 June. The statement acknowledged, but expressed no view on, the parties’ differing views on the arbitrators’ jurisdiction, but expressed the conclusion that the indirect claims did not provide a foundation for awarding compensation and should be wholly excluded from the Tribunal’s consideration in making its award. The US representative then indicated that the indirect claims would not be further pursued, and the hearing went ahead. In the result, the tribunal found against Britain unanimously on the Alabama, and by a majority of four to one, Cockburn dissenting, on the Florida. Decisions on captured vessels used as tenders followed the decisions on the vessels to which they were accessory. The remaining claims were dismissed, unanimously or by a majority. Cockburn wrote and published a long dissent, expressing strong views on the conduct of the hearing and the measure of damages. D. Arbitration’s Relevance for the Development of International Law 10 The Alabama claims arbitration is cited in support of two propositions of international law. The first is expressed by the International Court of Justice (ICJ) in Liechtenstein v Guatemala [1953] ICJ Rep 111, 119 ( Nottebohm Case ): Since the Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction. The second proposition, expressed by the Fisheries Case (United Kingdom v Norway) ([1951] ICJ Rep 116, 181) is that: a State can never plead a provision of, or lack of a provision in, its internal law or an act or omission of its executive power as a defence to a charge that it has violated international law.

Cockburn’s opinion in the Alabama arbitration has, in addition, been cited in support of the proposition that reparation should not only be proportionate to the loss caused by the culpa of the defending party but also to the gravity of the culpa itself in the Corfu Channel Case ([United Kingdom v Albania] [Merits] [1949] ICJ Rep 4, 96 Proportionality ; Reparations )). 11 The Alabama arbitration has been recognized as a model for resolving international and commercial disputes according to law ( Commercial Arbitration, International ). When in 1872 Gustave Moynier proposed an international criminal court to rule on breaches of the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field ([adopted 22 August 1864, entered into force 22 June 1865], US Treaties vol 1 at 7) he based it on the Alabama tribunal( Combatants ; International Criminal Court (ICC) ; International Criminal Law ; Wounded, Sick and Shipwrecked ). It was experience of this tribunal which inspired the Tsar of Russia and President Theodore Roosevelt to seek, in the Hague Peace Conferences (1899 and 1907) , to explore means of making international arbitration more effective, and the first legal principle noted above was expressly recognized in Arts 48 and 73 of the Hague Convention for the Pacific Settlement of International Disputes of 1907 ([signed 18 October 1907, entered into force 26 January 1910], reprinted in [1908] 2 AJIL Supp

and the Hague Convention for the Pacific Settlement of International Disputes of 1899 [signed 29 July 1899, entered into force 4 September 1900] [1907] 1 AJIL Supp 107. 12 On these foundations the Permanent Court of Arbitration (PCA) , the Permanent Court of International Justice (PCIJ) and the ICJ were in due course to be built.

The Alabama Arbitration: A Landmark in International Law, Summaries of Law

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