Nowadays when there is so much American skepticism about international law and international institutions, it may be hard to believe there was a time, albeit more than a hundred years ago, when Americans were generally enthusiastic about the law of nations.[1] Probably no incident better illuminates America’s earlier fondness for international law and international legal process than the Alabama arbitration.

Delivered in 1872, the Alabama judgment was the work of an ad hoc international tribunal composed of five judges named by each of the United States, Great Britain, Italy, Switzerland, and Brazil. The panel was empowered by Great Britain and the United States in 1871 to decide whether the United Kingdom had violated international law when it permitted British companies to build Confederate warships, notably the cruisers Alabama, Florida, and Shenandoah, which preyed on Union shipping during the American Civil War. After the North’s victory over the secessionist South in 1865, the United States demanded that the United Kingdom pay compensation for the losses caused by the British-built warships.

After hearing argument, the Alabama tribunal ruled that though Britain had owed the United States a duty of “active due diligence” to prevent private parties from supplying the southern rebels, she had failed to observe her international obligations as a neutral state.[2] Among other things, the panel found that the British government “omitted, notwithstanding the warnings and official representations made by the diplomatic agents of the United States during the construction of the [Alabama] to take in due time any effective measures … for the detention of the vessel.”[3]

The United States claimed about $21 million in direct and $4 million in indirect damages caused by the attacks of the Alabama and her sister Confederate raiders. The United Kingdom acknowledged only about $8 million in direct damages.[4] The arbitrators split the difference, ordering Great Britain to pay the United Sates some $15, 500,000.[5] The full sum was proffered in British Treasury Bonds on September 9, 1873. The American receipt was, remarkably enough, framed and hung in the Prime Minister’s residence, 10 Downing Street.[6]

The Alabama arbitration was an exceptionally encouraging development for international law enthusiasts. Some years earlier, in 1865, Lord Russell, the British Foreign Secretary, had refused to arbitrate the Alabama claims on the grounds that the British government were “sole guardians of their own honor.”[7] War between the two countries was not an outlandish possibility. The United States and Great Britain had already fought twice – the Revolutionary War (1775-1783) and the War of 1812 (1812-1815). It seemed credible that a third Anglo-American conflict might break out, a struggle not only about compensation for the Confederate maritime attacks, but also to settle possession of Canada, a part of the British Empire much coveted by some Americans.[8]

The eventual success of the Alabama arbitration became an important popular demonstration in the United States that it was possible for powerful states to arbitrate important disputes and thereby avoid war. General Ulysses S. Grant, President of the United States during the Alabama arbitration, was so encouraged by the tribunal’s deeds that the old warrior predicted “an epoch when a court recognized by all nations will settle international differences instead of keeping large standing armies.”[9]

The famous American legal codifier, David Dudley Field, turned to the Alabama proceedings to demonstrate the probability of the eventual success of international arbitration.[10] The success of the Alabama arbitration was a direct cause for the establishment in 1873, of the first two international associations for the promotion of international law and organization. One was the French-speaking Institut de Droit International, an academically-oriented group. The other was the English-speaking Association for the Reform and Codification of the Law of Nations, now called the International Law Association. The ILA sought a broad-based membership opening “its membership, not only to lawyers, but shipowners, underwriters, merchants, and philanthropists … Chambers of Commerce and Shipping, and Arbitration or Peace Sections, thus admitting all who are interested in the improvement of international relations.”[11] The Alabama arbitration, now largely forgotten, was at the time profoundly influential. In the words of Samuel Eliot Morison, “never before had disputes involving such touchy subjects of national honor been submitted to the majority vote of an international tribunal.”[12] Although American enthusiasm for international law and organization would wane after World War I,[13] the 1872 Alabama arbitration was, in a significant way, the progenitor of the three successive world courts, all sitting in the Carnegie-funded Peace Palace in The Hague: the Permanent Court of Arbitration (1899), the Permanent Court of International Justice (1921), and nowadays the International Court of Justice (1945).

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[1] For more on the period of optimism, see M.W. Janis, America and the Law of Nations 1776-1939 (2010) [hereinafter cited as Janis].

[2] Blomeyer-Bartenstein, “Due Diligence,” 10 Encyclopedia of Public International Law 138, 139 (1987).

[3] The “Alabama” Claims and Award, 1872, J.B. Scott, Cases in International Law 713, 716-7 (1906).

[4] U.S. Department of State Papers Relating to the Treaty of Washington: Volume IV – Geneva Arbitration 41-2 (1872).

[5] W.W. Bishop, International Law 1023, 1023-1027 (1971).

[6] G.J. Wetter, 1 The International Arbitral Process: Public and Private 170-1 (1979).

[7] Charles C. Hyde, 2 International Law Chiefly as Interpreted and Applied by the United States 120 (1922).

[8] Samuel Eliot Morison, The Oxford History of the American People 726-9 (1965) [hereinafter cited as Morison].

[9] C.D. Davis, The United States and the First Hague Peace Conference 13-4 (1962).

[10] Field, ‘International Law,’ 8 Albany Law Journal 277, 279 (1873).

[11] International Law Association, Report of the First Conference, held at Brussels, 1873, and of the Second Conference, held at Geneva, 1874, at v (1903).

[12] Morison, supra, at 729.

[13] See Janis, supra, at 158-175, 194-220.