Related Post: Compulsory Jurisdiction: Metonymy. The Consent Degrees
In terms of dispute settlement, two types of international agreements pave the legal relationship between States. Firstly, agreements concerning solely the peaceful settlement of potential disputes that may arise between them, without any concrete relation to other matters of interest of those States beyond the peaceful settlement of disputes itself. These may be called (a) dispute-settlement-related agreements (Stand-Alone or Principal Dispute Settlement Agreements).
The dispute-settlement-related agreements may be split into two subcategories: (a.1) dispute-settlement-related agreements with ipso facto effects and (a.2) without ipso facto effects, as the assumed obligation by the treaty emerges of ratification itself or not. The 1948 American Treaty on Pacific Settlement (Pact of Bogotá) is a dispute-settlement agreement with ipso facto effects, while, for instance, the 1899 Convention for the Pacific Settlement of International Disputes is a dispute-settlement agreement without ipso facto effects.
Secondly, there are numerous other agreements whose scopes include agriculture, defense (or security), cultural, environmental or scientific affairs, financing, immigration, infrastructure, trade, transportation, etc. These agreements are the (b) non-dispute-settlement-oriented agreements, as their objectives are driven towards other goals between the concerned States. When such agreements are not endowed with a dispute settlement clause, their enforcement is dependent on other concrete protocols.
Agreements not focused on dispute settlement may include a clause outlining the procedures to be followed in the event of a conflict; then, they may be classified as (b.1) non-dispute-settlement-oriented agreements without or (b.2) with dispute-settlement clause (Incidental dispute-settlement Agreement) For instance, the Agreement and Administrative Arrangement both signed at Washington on June 30, 2015, entered into force on October 1st, 2018, between Brazil and the United States, has no dispute settlement clause, while the Statute of the River Uruguay is a treaty signed on 26 February 1975 by Argentina and Uruguay, which is provided with a dispute-settlement clause.
The United States and Brazil share a longstanding friendship, with the U.S. recognizing Brazilian Independence on May 26, 1824[1]. Both countries are involved in several bilateral accords.
In the case of the US-Brazil partnership, there are a number of important agreements without dispute settlement clauses, viz., the Reciprocal Trade Agreement signed at Washington on February 2nd, 1935, where there is no clause establishing proceedings when a conflict emerges in the course of the agreement. The same as for the Protocol to the Agreement on Trade and Economic Cooperation between the Government of the United States of America and the Federative Republic of Brazil relating to trade rules and transparency. Further, there is the Agreement between Brazil and the United States to Exchange Tax Information, the TIEA, signed in March 2007, as part of the worldwide effort to avoid tax evasion.
Thus, in view of those agreements devoid of a specific dispute settlement provision, if a dispute emerges, it will have to go through diplomatic or amicable channels, which lead to a deadlock if a solution is not found.
Regarding the United States, it is relevant to point out that although it is a country committed to International Law and plays a significant role in the modern history[2] of International Justice (evidenced by the Jay Treaty of 1794-95 and the Alabama Claims of 1862-74), that country does not generally accept international jurisdiction, notably, treaties providing for compulsory jurisdiction, that is, the dispute-settlement agreements with ipso facto effects.
We can consider the Statute of the International Court of Justice as a dispute-settlement agreement with ipso facto effects, which has not the US´s consent. In this sense, summarizes Sean D. Murphy[3] that “Since 1946, the United States has had an uneasy relationship with the International Court of Justice (ICJ, the World Court, or the Court). On one hand, the United States embraces the rule of law within its own society and, in principle, within the international system of states. The United States has been and remains an active participant in cases before the Court, appearing before it several times, more than any other state, even in recent years. On the other hand, the United States has never been willing to submit itself to the plenary authority of the Court and has typically reacted negatively to decisions by the Court that are adverse to U.S. interests. As is well known, in response to decisions that were reached by the Court, the United States refused to participate in the proceedings on the merits of the case brought by Nicaragua in 1984, withdrew from the Court’s compulsory jurisdiction in 1986, and recently terminated its acceptance of the Court’s jurisdiction over disputes arising under the Vienna Convention on Consular Relations”.[4]
Furthermore, the United States does not adhere to the 1982-Convention on the Law of the Sea because it institutes a compulsory dispute settlement mechanism entailing binding decisions. That country does not ratify likewise the American Treaty on Pacific Settlement “Pact of Bogotá”, signed at Bogotá, on April 30th, 1948, as this convention also stipulates a comprehensive system of compulsory jurisdiction. Twenty-one years earlier, the United States had ratified the 1929 General Treaty of Inter-American Arbitration, but did it with a reservation[5] that, in practical terms, turns the obligation to submit a dispute to arbitration hinging on its own will.
The only multilateral and comprehensive international dispute resolution system which the United States adheres to is the World Trade Organization´s Dispute Settlement System, as the nature of the dispute mechanism involved in that framework does not imperil its sovereignty.
On that account, the United States consents to dispute-settlement agreements with ipso facto effects only on a bilateral basis, even though with caveats.
Considering Brazil, the United States has consented to a dispute-settlement agreement with ipso facto effects. It is the 1911 Arbitral Agreement, signed at Washington, in force since July 26th, 1911.
Remarkably, the 1911 Arbitral Agreement between Brazil and the United States has its compulsory jurisdiction under conditions:
ARTICLE I. “Differences which may arise of a legal nature or relating to the interpretation of treaties existing between the two high contracting parties, and which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague, provided, nevertheless, that they do not affect the vital https://history.state.gov/historicaldocuments/frus1911/d33 1/3 02/03/2025, 11:38 Historical Documents – Office of the Historian interests, the independence, or the honor of the two high contracting parties, and do not concern the interests of third parties, and it being further understood that in case either of the two high contracting parties shall so elect any arbitration pursuant hereto shall be had before the chief of a friendly State or arbitrators selected without limitation to the lists of the aforesaid Hague Tribunal”.
Moreover, turning a mandatory jurisdiction even more difficult, that arbitration agreement further stipulates that:
ARTICLE II. “In each individual case the two high contracting parties, before appealing to the Permanent Court of Arbitration of The Hague or to other arbitrators or arbitrator, shall conclude a special agreement defining clearly the matter in dispute, the scope of the powers of the arbitrator or arbitrators and the periods to be fixed for the formation of the court, or for the selection of the arbitrator or arbitrators, and for the several stages of the procedure. It is understood that, on the part of the United States of America such special agreement will be made by the President of the United States of America by and with the advice and consent of the Senate thereof, and by the President of the United States of Brazil with the approval of the two Houses of the Federal Congress thereof”.
Whenever the issue of compulsory international adjudication involving the United States arises, the “Ghost of Senator Bricker” comes to the forefront. This refers to the foundational principles established by the Congressman, which serve as a barrier against treaties that could potentially compromise the United States’ autonomy.[6].
[1] When President James Monroe received José Silvestre Rebello, as Brazil’s Chargé d’Affaires to the United States.
[2] “although the United States was often seen as the standard-bearer in the arbitration movement, it actually ratified relatively few of the arbitration treaties it had negotiated”, read in Lloyd, Lorna. “‘A Springboard for the Future’: A Historical Examination of Britain’s Role in Shaping the Optional Clause of the Permanent Court of International Justice.” The American Journal of International Law, vol. 79, no. 1, 1985, pp. 28–51. JSTOR, https://doi.org/10.2307/2202662. Accessed 24 Mar. 2025.
[3] Murphy SD. The United States and the International Court of Justice: Coping with Antinomies. In: Romano CPR, ed. The Sword and the Scales: The United States and International Courts and Tribunals. Cambridge University Press; 2009:46-111.
[4] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) – in INTERNATIONAL COURT OF JUSTICE. To read more the subject of compulsory jurisdiction (of the ICJ) and the US, see: Scott, Gary L., and Craig L. Carr. “The ICJ and Compulsory Jurisdiction: The Case for Closing the Clause.” The American Journal of International Law, vol. 81, no. 1, 1987, pp. 57–76. JSTOR, https://doi.org/10.2307/2202131. Accessed 24 Mar. 2025.
[5] “This Government ratified the Treaty “with the understanding, made a part of such ratification, that the
special agreement in each case shall be made only by the President, and then only by and with the advice and consent of the Senate, provided two thirds of the Senators present concur.” See at 1929 General Treaty of Inter-American Arbitration´s reservations. The text of the 1929 General Treaty of Inter-American Arbitration.
[6] Henkin, Louis. “U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker.” The American Journal of International Law, vol. 89, no. 2, 1995, pp. 341–50. JSTOR, https://doi.org/10.2307/2204206. Accessed 24 Mar. 2025.
