04 Jul 2019
Few countries have supported arbitration as its preferred method for dispute resolution as Brazil. Indeed, arbitration, in particular in Public International Law, has been a constant event in the South American country´s history. To the point that ADR has become a veritable tradition in its diplomacy.
Brazil had many border disputes with its 10 neighbouring countries. All of which had been finally resolved by an ADR method, i.e., without recourse to violence. The patron of the county´s diplomacy, Baron Rio Branco, who was Minister for Foreign Affairs between 1902 and 1912, was an ardent supporter of arbitration. As a matter of fact, he cut his teeth as counsel for Brazil in a border dispute with neighbouring Argentina about the region of Palmas.
The question involved an area of about 30.000 km between both countries. Brazil and Argentina, as independent nations, have inherited the border disputes between their former colonial powers, Portugal and Spain, respectively. The first treaty between Portugal and Spain concerning the territorial limits of the area was the Treaty of Madrid (1750). This treaty was subsequently modified many times, specially by the treaties of Santo Ildefonso (1777) and Badajós (1801). After a century of wars in the region, the now independent countries, Brazil and Argentina, could still not reach a border agreement at the end of the nineteenth century. In 1889 the two countries signed an agreement to submit the issue to arbitration. In 1892 the arbitral tribunal was formed with the U.S. President Grover Cleveland as its chairman.
Baron Rio Branco was counsel for Brazil. In a typical attitude of Brazilian lawyers and diplomats, Rio Branco conducted a most detailed study of the question, compiling nothing less than all documentation available about the region, both in South America and in Europe. His pleadings were so detailed that they completed six volumes with extensive annexes. Rio Branco´s main point of legal argument was based on the defence of the old Roman principle of uti possidetis, i.e. that the border should respect the effective possession of the territory at the moment of the declaration of independence.
President Cleveland published his award on 5 February 1895. It was entirely favourable to the Brazilian claim. One of the main towns in the region was then baptized as “Clevelândia”, in honour to the arbitrator. Such a roaring success paved the way for Brazil to turn to arbitration as a way to solve its international disputes in many other instances. From border issues to commercial litigation at the World Trade Organisation, the recourse to arbitration crystallised as distinct tradition in the country’s diplomacy.
Brazil, in short, is perhaps one of the greatest supporters of arbitration in the Public International Law sphere. The recourse to ADR enjoys centuries of tradition in the country’s diplomatic history, to the point that the peaceful solution of controversies was even enshrined as a constitutional principle. Few countries, if any, are so committed to international arbitration.
Paulo Fernando Pinheiro Machado, FCIArb is a Brazilian diplomat and advocate. The opinions expressed in this article do not necessarily reflect that of the Brazilian government or of any institutions to which its author is affiliated.