The ‘Alabama’ Claims: A Maritime Grievance

The ‘Alabama’ Claims: A Maritime Grievance

Author: Divya Bothra, VITSOL

Abstract

The Alabama claims(1862-1872), nautical grievances were a series of demand of the United States of America claiming for the damages from the United Kingdom in 1869, for capturing and burning more than 60 ‘Union Merchant Ship’ that arose during the American Civil War (1861-1865). This article deals with the Public International lawthat discusses the role of international law, its importance, and enforcement. The article also conveys about the sources of International Law that includes treaties, custom, and general principles.The other sources specifically the Judicial decision that interprets the precedent are discussed in this article. The paper also elaborates ‘The Alabama Claims’ case, as it is a renowned example under the Public International Law.

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The Public International Law is a set of rules and principles that is legally binding the international relations between the States, International Organization, individuals, and other entities. It also includes the other institutional subject such as the United Nations, Arab League, Council of Europe, etc. Public International Law deals with a range of activities, such as diplomatic relations, disputes, trade and commerce, human rights, the conduct of the war, and the sharing of maritime resources.The body of legal rules, obligations, responsibilities, and rights of international law were established primarily for one State against another. The view of international law is based on sovereign equality.In simpler words, each State is a sovereign and independent of all other states. This means when international law sets the relations between States, it is equally applicable to all States.

International law is a very important mechanism without which an interdependent world would not be able to function. While considering State as the primary subject of international law, it can also regulate other entities, namely international organization, non-state actors, international non-governmental organizations, etc. All can be defined as a subject of international law as well. In the case of individuals, international law gives certain rights to individuals, for example, the International Human Rights gives the individual right to freedom of religion. This means everyone has a right to freedom of religion, this right, also includes to change his or her religion, to manifest his or her religion in teaching, practice, and worship.

International law imposes on States certain rules, responsibilities, and obligation to protect individuals. For instance, when State is at war, a State cannot target and kill civilians of other State who did not take part in antagonisms. International law keeps evolving. It is not stagnant. It covers diverse subject and has multiple field of application. International law applies, inter alia, to: initiation of war ( law relating to the use of force); diplomatic relations ( diplomatic law); individual’s rights (humanitarian law); ocean resources (law of the sea); and to certain crimes( international criminal law).

SOURCES OF INTERNATIONAL LAW

The article 38 (1) of the International Court of Justice statute classifies three sources of international law, they are: Treaties, Customs, and General Principles. Since there is no world administration, there is no world convention or parliament there is a difference in the creation of law in international law as the system is horizontal and decentralised also inevitably more complicated compared to domestic system.

TREATIES

Treaties are known by a variety terms that are similar to contracts, agreements, pacts, charter all of which signify in a written instrument in which promises between States are exchanged, finalised, and signed. States may debate on the understanding and implementation of a treaty, but the written provisions of a treaty will be binding. Treaties can address any number of fields while there are exceptions to it. Treaties that are addressed to are such as trade relations, for example, Northern American Free Trade Agreement or control of Nuclear weapons, for example, Nuclear Non-Proliferation Treaty. However, some agreements are administered by municipal law, for example, commercial accords between states and international enterprises. In this case, international law is inapplicable. Treaties may be Bilateral (between two states), for example, those emanating from Strategic Arms Limitation Talks or Multilateral (between many countries), for example, Geneva Convention (1949).

CUSTOM

The international court of Justice statute refers to “international custom, as an evidence of general practice accepted as law” as a second source of law. The Customary International Law is more difficult and important as it reflects the decentralised nature of the international system. It involves two fundamental elements: the actual practice of states and the acceptance by a state of that practice as law when they demonstrate that those statesbelieve that acting against it would be illegal. Even if the actual practice of the state is not written down which covers various elements, including duration, consistency, repetition, and a particular kind of behaviour will still be binding on States and requiring them to follow. For example, if a country harms the Ambassador, it would be violating the Customary International Law. Similarly, in modern history the states have accepted through their action and statement that deliberately killing civilians during wartime is illegal.

GENERAL PRINCIPLES OF LAW

The third source of international law that is the general principle identified by the International Court of Justice statute is the “general principle of law that is recognized by civilized nations” are particular legal beliefs and practices that are universal to all developed legal systems. It is also said that it is based on the theory of “Natural law” which argues that law is the reflection of the instinctual belief that some acts are right while other acts are wrong. For example, the act of “good faith”, it is the theory that everyone expects to comply with the agreement they make.

THE OTHER SOURCE OF INTERNATIONAL LAW

Article 38(1) of the International Court of Justice statute also identifies judicial decisions and scholarly writing as subsidiary means for the determination of law. Both can help to establish new principles and rules. These are characterised as “material sources” that comprise the ‘actual content of the rules.’ Also, these sources are not by themselves international law. They are combined with evidence of international custom or general principle of law that might help to prove the existence of a particular rule of international law.

JUDICIAL DECISION- INTERPRETATION OF PRECEDENT

According to article 38 of the statute of the International Court of Justice shall apply subject to the provisions of Article 59, which means “the decision of the court has no binding force except between the parties and in respect of that particular case[1]”. The International Court of Justice is considered to be an authoritative advocate of law. The International Court of Justice refers frequently to its own past decision and precedents as a guide to the content of international law.

Article 38(1)(d) does not differentiate between decisions of international and national courts. The former is generally deemed to be more authoritative evidence of international law on most topics (though not those which are more commonly handled by national courts, such as the law on sovereign immunity). But decisions of a State’s courts are a part of the practice of that State and can,therefore, contribute directly to the formation of customary international law[2].

THE ALABAMA CLAIMSCASE, 1862–1872

INTRODUCTION

The Alabama Claims were a diplomatic dispute of maritime grievances that were a series of demand of the United States of America claiming for the damages from the United Kingdom in 1869, that emerged during and just after the American Civil War (1861-1865). The claims are important in international law, as further use of arbitration helps in settling the dispute peacefully and for describing certain responsibilities of neutrality toward belligerents. Despite it declared neutrality with concern to the US Civil War, the United Kingdom had not prevented British ports from being attacked by several Confederate warships built in Liverpool during the civil war, they were the most notably commerce raiders Alabama and Florida. The British Foreign Enlistment Act of 1819 prohibited the construction and outfitting of foreign warships. The Confederates sidestepped the letter of this law in the early years of the war by various intrigue planning and managed to purchase several cruisers. The diplomatic resolution of these claims were the seven years after the war ended set an important precedent for solving major international disputes through arbitrationand it greatly improved the relationship between the United Kingdom andthe United States of America.

NAVY OF CONFEDERATE STATE(CSN)

The Navy of the Confederate State was the marine branch established on February 21, 1861, by an act of the Confederate State Congress. The most renowned example was the Confederate ship recognized as themost successful of these cruisers “Alabama” which was assumed to have sunk over60 Union ships before it was finally sunk.The Confederate was responsible for naval attacks during the American Civil War (1861-1865) against the United States Navy (Union Navy)[3]. The dispute centred when the confederate agents contracted with private shipbuilders in Liverpool, England to refurbish ships for war.The“CSS Alabama” was one such ship that was built in secrecyon July 29, 1862, by British shipbuilders John Laird Sons and Company in England at their shipyards opposite Liverpool.The construction was planned by the Confederate agent Commander James Bulloch, who directed the purchasing of sorely needed ships for the fledgling Confederate States Navy (the south).Confederate Cruisers used the warship against the “Union Merchant Ships” as a commerce destroyer which captured, sank, or destroyed more than 60 ships in 22 months before being sunk in June 1864 by the USS Kearsarge off the coast of France.After the Union (the North) won the Civil War, the US administration was reasonably anxious to hold the UK responsible for what was generally perceived to be a very serious infringement of the international law of war and peace. By the end of the war, the U.S had lost half of its ships and the damages discussed were enormous. The United States claimed compensation from Britain for the damage done by the British-built, Southern-operated commerce raiders, based upon the argument that the British Government, by aiding the creation of a Confederate Navy, had inadequately followed its neutrality laws.[4]

TREATY OF WASHINGTON

The Treaty of Washington was a treaty signed and approved by the UK and US on May8, 1871, Hamilton Fish, President Ulysses S. Grant’s Secretary of State, worked out an agreement with British representative Sir John Rose to create a commission in Washington comprising six members from the British Empire and six members from the United States[5],the objective of the treaty was to settle down the US claims against the UK based on the damages of “Alabama” through International Arbitration. The treaty settled various disputes between the countries, including ‘Alabama claims’ caused by British-built warships, illegal fishing in Canadian waters and British civilian losses in the American Civil war[6]. A clear codification of the international law was set out in the treaty governing the duties of neutral states in wartime and to submit the Alabama claims binding international arbitration. The startling factwas the UK was willing to endorse both. The arbitration commission, which issued its decision in September 1872, rejected American claims for indirect damages, but did order Britain to pay the United States $15.5 million in gold as compensation for the Alabama claims.Britain having expressed regret over the Alabama damages.

CONCLUSION- THE TRIBUNAL

The treaty established a five-person Tribunal of Arbitration, with arbitrators named by the US, the UK, the King of Italy, the President of Switzerland, and the Emperor of Brazil. The representatives are

Britain: Sir Alexander Cockburn
United States: Charles Francis Adams, with William Maxwell Evarts serving as counsel
Italy: Federico Sclopis
Switzerland: Jakob Stämpfli
Brazil: Marcos Antônio de Araújo, 2nd Baron of Itajubá.

The treaty has set out clear codification of international law. Certain wartime maritime duties of neutrals were set out and agreed,In article 6 of the treaty of Washington outlined the principal arbitration of the Alabama claims, meeting at Geneva, as follows: that a neutral government must use “due diligence” to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel believed to be intended to carry a war against a power with which it was at peace and to prevent the departure of such a vessel (the substance of this clause was included in article 8 of the 1907 Hague Convention) and that a neutral must not permit its ports or waters to be used as a base of naval operations for similar purposes[7].On Sept. 14, 1872, the tribunal voted collectively that Britain was legitimately liable for direct losses caused by the Alabama and other ships and awarded the United States damages of $15,500,000 in gold.