The International Arbitration of Territorial Disputes
By Asaf Siniver
Oxford University Press, 2024
In this new book, Asaf Siniver offers a unique perspective on international arbitration of territorial disputes from a political standpoint. He argues that arbitration has been underutilized in resolving border conflicts compared to third-party mediation, even though in many cases, arbitration appears to be the best available tool for states. To explore the reasons behind this phenomenon, the author invites the reader to view arbitration as a process, examining its “antecedents, occurrence, and outcome.” The goal of the study is to identify the context in which states turn to arbitration for resolving interstate territorial disputes and to understand why states choose to comply with, or defy, the arbitration award.
Siniver’s analysis of arbitration is innovative from both international relations and international law perspectives. First, international relations studies have focused on the differences between third-party mediation and legal dispute resolution methods, often based on large quantitative research. Second, international law has generally studied arbitrations through their outcomes, offering legal analyses of the awards issued by arbitral tribunals. Siniver’s book, however, provides a qualitative and comparative analysis centred solely on arbitration. Through a small sample of border arbitrations between states, he draws conclusions about the similarities and differences observed in the arbitrations processes.
The book begins by placing arbitration within the broader range of mechanisms that states can use to resolve disputes peacefully: direct negotiation, mediation, arbitration, and adjudication. Within this spectrum, arbitration is presented as occupying a twilight zone between binding and non-binding methods of dispute resolution. Siniver characterizes international arbitration as a “hybrid method of dispute settlement that combines the most attractive attributes of third-party mediation (party autonomy) and adjudication (legally binding outcome)” (p. 173). Arbitration, therefore, is akin to mediation due to the flexibility it grants parties to shape the process according to their needs and allowing the tribunal to rule based on equity, beyond strict legal considerations. At the same time, arbitration resembles adjudication because its outcome is legally binding for the parties. For the author, this dual nature of arbitration makes it particularly suitable for resolving territorial disputes, as it enables political conflicts to be solved through a legal mechanism based on equity, with a mandatory and final outcome.
According to Siniver, states often prefer other methods of dispute resolution over arbitration for territorial disputes, not due to flaws in the arbitration mechanism itself, but because of how states choose to apply it. For instance, states may limit arbitration in ways that undermine its key features, such as flexibility, party autonomy, and the tribunal’s capacity to issue decisions based on equity. This misapplication causes arbitration to lose its hybrid nature and resemble a purely legal mechanism. Consequently, Siniver concludes that the underutilization and shortcomings of arbitration are due to the specific design chosen by states for the cases to be arbitrated.
Siniver then tests his theoretical framework through four arbitrations that took place in different regions: the Rann of Kutch Arbitration between India and Pakistan; the Beagle Channel Arbitration between Chile and Argentina; the Taba Arbitration between Egypt and Israel; and the South China Sea Arbitration between the Philippines and China. For each case, the author examines the national and international political context in which the parties decided to use arbitration, how they selected the arbitration rules, and whether they chose to comply with the award. Interestingly, Siniver concludes that arbitration never occurs in a vacuum; rather, in each case, arbitration is part of a “case management trajectory,” in which different dispute resolution methods are alternated to resolve long-standing conflicts. Arbitration, in these cases, is used by states after previous failures to resolve outstanding disputes.
Another significant conclusion is the importance states place on appearing as actors who abide by the rules of public international law. Siniver demonstrates that even though in half of the studied cases, the losing party chose not to comply with the tribunal’s ruling, states were concerned about the reputational costs that their decision could case to their imagen in the international arena. In the studied cases, both Argentina and China justified their non-compliance using arguments rooted in public international law, even though, in practice, their decisions were based on domestic and foreign policy considerations.
On a less positive note, Siniver points out that in the four cases studied, the states have not chosen arbitration again to resolve other pending border disputes. However, this was not the case for Chile and Argentina, which submitted the Laguna del Desierto dispute to arbitration in 1994. Siniver also concludes that, in general, there is a lack of political will to use arbitration to resolve territorial conflicts of greater geopolitical significance. For example, India and Pakistan have not used arbitration to resolve the Kashmir conflict, and arbitration has not been used to settle other aspects of the Arab-Israeli conflict. Similarly, in the South China Sea case, which involved significant economic interests for the parties and was the only case studied in which a global power was involved, China chose not to comply with the award, despite efforts to manage the reputational costs associated with its decision.
Contrary to Siniver’s thesis, the case studies suggest that in disputes involving broader geopolitical interests, states tend to be more reluctant to resort to arbitration due to its inherent characteristics. Arbitration is, by nature, a zero-sum process — necessarily producing a winner and a loser. Moreover, it requires the selection of a tribunal and the drafting of a compromis, both of which can become points of contention and provide grounds for challenging the impartiality of the award. Consequently, governments may be unwilling to bear the domestic political costs of losing a dispute that arouses public sentiment or has long-term economic or security implications.
Perhaps it is precisely these intrinsic features of arbitration that drive states to opt instead for adjudication by permanent courts. What political advantages does a standing tribunal—with permanent judges—offer over arbitration, where parties select their arbitrators?
While Siniver’s study succeeds in contrasting and capturing the comparative advantages of arbitration over mediation under certain political conditions, it falls short by not addressing the differences between arbitration and adjudication. Adjudication has its own benefits. For instance, in territorial disputes between states, the deciding body is typically a permanent court whose members are not appointed ad hoc for a specific case, thereby strengthening perceptions of impartiality and institutional credibility.
Ultimately, the decision to submit a dispute to a particular dispute resolution mechanism is a political one. It would be valuable to explore the conditions under which adjudication is politically preferred over arbitration—ideally through a quantitative study comparing how often states choose adjudication versus arbitration. This could be complemented by a process-oriented analysis of selected adjudication cases. Such an approach would deepen our understanding of when arbitration, given its hybrid nature, becomes the most politically appropriate method for resolving territorial disputes.
It is also important to consider that states are often unable to choose adjudication to solve their territorial disputes, as international courts lack jurisdiction per se and require states to grant it — either for a specific case or through treaty commitments. For this reason, Siniver’s study would also benefit from an analysis of instances where arbitration was chosen because no other adversarial dispute resolution mechanism was available.
Finally, Siniver’s book successfully finds the intersection between international relations and international law in the resolution of border disputes. Through clear and systematic examinations of four case studies, the author demonstrates that the two fields are not mutually exclusive but complementary, and that one cannot be fully understood without the other. While international arbitration itself is a legal process in which the parties involved advance arguments based on public international law, the ultimate decision is driven by political factors, both in choosing arbitration to settle a border dispute and in deciding whether to comply or not with the tribunal’s award.
Further Reading on E-International Relations
