What is the Permanent Court of Arbitration?

By Chua Chin Leng (chinadaily.com.cn) 2016-07-14 16:04

Wikipedia has this to say about the PCA.‘The PCA is not a “court" in the conventional understanding of that term but an administrative organization with the object of having permanent and readily available means to serve as the registry for purposes of international arbitration and other related procedures, including commissions of enquiry and conciliation. The judges or arbitrators that hear cases are officially called "Members" of the Court.

The public at large is usually more familiar with the International Court of Justice than with the Permanent Court of Arbitration, partly because of the closed nature of cases handled by the PCA and also the small number of cases dealt with between 1946 and 1990. Sometimes even the decision itself is kept confidential at the request of the parties.’

To simplify, this is a private entity established to facilitate arbitration by member states on a willing buyer willing seller basis. It is quite like a commercial establishment, any member state can come to seek help to arbitrate their disputes. It is not a court! It is not a world body like the UN or sanctioned by the UN. Its jurisdiction and ruling are as good as the disputing parties want it to be. It has no authority and no legal status if a disputing party is not willing to subject itself to its arbitration. The closest example of such a court is the international court in Tanjong Pagar in Singapore, a convenient store for customers to avail themselves of its facilities.

I hope this is clear and no one should go on to believe that it is akin to the International Court of Justice, a UN organization. This South China Sea dispute that the PCA was hearing has no credibility and legal standing as the other party did not oblige or agree to the arbitration. What China said, that it is piece of waste paper is as good as it could be.

The Americans and its allies have tried to deceive the world that the PCA’s rulings on the Philippines submission are binding and legal. This is hogwash. How could it be when it is not a court of law? How could it be when it is a tribunal for willing parties to seek arbitration when there is an unwilling party (China) that refused to participate and did not even make any representation on the case?

Having established the basis and nature of the PCA, it would be interesting if the Philippines would to file another case to claim the state of Sabah as part of the Philippines. And it is expected that Malaysia would object and would decline to participate in such a trial settlement. But given the support of the Americans, the PCA could go ahead to appoint a panel of judges without the consent of Malaysia and come out with a judgment in favor of the Philippines. And the PCA could then declare that its ‘judgment’ is final and binding on Malaysia.

Would Malaysia agree to the judgment, would it be legal and binding on Malaysia? Many similar cases and judgments could be brought to and decided by the PCA which the Americans would like the world to believe is a world body with the authority to impose its judgment on unwilling nation states and expect them to abide by it.

The most dangerous implications arising from this precedent, if it can be called a precedent, would be on countries agreeing to the Trans Pacific Pact (TPP) that the Americans are proposing. The members of this TPP would come under the jurisdiction of the PCA for obvious reasons and they have no rights to be excluded from its judgment, and its decision would be final and binding.

This could be a test case and a precedent that the Americans are trying to set to impose on the members of the TPP with the PCA doing its bidding like in this South China Sea case. Can members of the TPP and members of the PCA expect a fair hearing when they can be put on trial against their objections? Would any country be willing to be ruled by an organization like the PCA to determine the fate of their disputes, even their sovereignty without their consent?

The PCA cannot be seen to be an authority or a court to rule over nation states. It is a miscarriage of justice and an attempt to usurp the rights of a nation state in matters of the state and sovereignty if the PCA, a commercial organization, is deemed to have such authority.
Can a commercial tribunal rule over nation states and its judgment be binding against the objection of nation states?

The author is a political observer from Singapore.

PS. There have been many comments and discussions and opinions on this PCA rulings by all and sundry, including academics and the untrustworthy politicians. Even in a Channel News Asia programme the presenter was saying that the PCA was a UN backed arbitration court which is furthest from the truth.

In brief, the discussions and comments can be summarised like people arguing why 1 + 1 = 4 and not 3. To some it should be 3 and to others it should be 4. They forgot to go back to first base to question why 1 + 1 is 3 in the first place. This boils down to a lack of understanding of what this PCA is all about. It is like a private school or university, uncredited, unrated commercial setup unlike a govt or established and recognised public university.  The private school would take in any candidate who is willing to pay the tuition fee and may even freely award first class honours to the highest bidder to increase its revenue.

The PCA has nothing to do with the UN or approved by the UN. It is NOT a court but a tribunal for willing parties to seek an arbitration ruling applicable and binding only to the consenting parties. How on earth would academics forget this critical distinction, and for politicians to call a non participating litigant to respect its ruling, that its ruling is binding?  They totally forgot to dispute that fact that 1 +1 is not equal to 3 but 2.  They start to argue from a wrong basis, that a private school has so much credibility that its degrees must be recognised at all cost.

Get my point?


Anonymous said...

Wikipedia - 'Since the PCA is not UN-backed agency, it's income relies on the arbitration services it provides to its clients. Unlike the judges from the International Court of Justice who are paid by the UN, judges of the PCA are paid from that same income the PCA earns.'

In the South China Sea dispute case, it is obvious who are the parties paying for the time of the judges. Definitely not China. What can you expect from the final judgment?

Anonymous said...

PCA dont have no power of enforcement in the Philippine China case.

However, under the US led TPP,the PCA (Investor-state dispute settlement) have power of enforcement.

USA govt able to confiscate Singapore govt's assets in the USA and sold them away to pay those compensation awards given by the Tribunal.

Even if Singapore had boycott the tribunal or it may violate Singapore constitution, sovereignty

It was based on the legal precedent sets by USA in the SCS. ( future vision of USA in their TPP)

Singapre support recent ruling in SCS.

Anonymous said...

This post is very good.

It states PCA is a PRIVATE organization.

China said the Philippines and "other parties" paid for the 5 judges salaries. China added, the judges collected the money and helped the pay master to resolve Philippines s problems.

Out of the 117 years history, a report said, the known cases listed out by PCA, of 16 or so related to states, NONE of them was carried out or complied.

The hit rate is 0%.

If we look at the judgment of Scs, the hit rate will have to be zero, from arrangement of the judges, the refusal of one party to participate, and the insistence of delivering the judgment based on hearsay without ground or site inspection.

The PCA judgment said, Taiwan Taiping island was considered a reef because it has no natural water, and all supplies are from other place other than the island.
The judgment quoted a writing from one taiwanese professor who wrote an article last year, and used by the Philippine lawyer.

Was the Taiwanese telling the truth? No. He could be bought, we dont know. But in reality is: Taipei island has well water, and the water can be consumed like mineral water. President Ma did show the well when he was there on the island. There was planting of vegetable, and inhabitants like soldiers had to live with those vege.

The judgment written based on unfounded facts was a big problem of PCA judgment. The judgment was based on who was the pay master.

And US wanted China to comply with it. Therefore PLA declared not one inch of land will be let go. Chinese are bullied to this extend. What does China civilian govt do?
Sanction Philippines in trade with China is a must do, in my view. Sell the US bonds to get ready for war is another, as Thaad is coming soon as next problem from the black hands behind the judgment and the missile. Sanction S Korea is also a must do. I just find the civilian govt under Xi is too soft. No retaliation against US, S korea and Philippines will mean more future troubles for China.

Anonymous said...

Dont try to be smart here and get trap further.

So does it mean that China is willing to go to ICJ and not arbitration.

If ICJ hands down the ruling, will China comply? having know how the world works? What happens if ICJ pass same ruling, does it mean really have to give up 9 dash line then or 50% ? Got guarantee?

Arbitration is very common and not as you say. Arbitration is for what then? Everything go to court? Never see snake shit. Our Sg- Malaysia rail dispute was under Arbitration.

Said gozillian times, PCA dont have enforcement power in one way or the other. It is only one of the tool to put pressure on China. Now the question is how to defuse the pressure and keep 9 dash line. Military is one option for eg, just have to give up other things in exchange.

In short, ICJ or PCA or whatever court cannot be used to judge 9 dash line.

Anonymous said...

PCA only provided secretarial services, according to china.
So this case is not a PCA case, and surely not ICJ case.

The Japanese was the head of Ocean laws arbitration court. In Ocean laws, there can be a normal arbitration or special arbitration. But countries signed for Oceans Laws have NO obligations to comply or carry out the judgment. This is provided in Ocean Laws.

So China is correct and need not to comply. Its only US wanted China to comply, not the Ocean Laws said so. US did not sign for Ocean Laws. This kind of super power is really a gangster.

The Japanese helped Abe to change Japan Laws to militarize Japan, and then he was stationed in US as Japan ambassador.
The 4 judges were appointed by him, and pinoy appointed a German professor in the team. Out of the appointed team, there was a change. A team appointed by the Japs found to have a Piney as his wife. The change was made to an african man.

So the special arbitration team was under Humburg ocean laws arbitration court, and NOT under PCA. PCA involved in secretarial service.

Most important, these judges are appointed by a single person whose country Japan involves Scs dispute on Senkaku island. The judges were paid by Philippines and someone else and never under UN payroll. The objectivity is in doubt.

There is no legal compliance needed, not binding, and certainly not for China.

Anonymous said...

Philippine and USA had fool those people with those UNCLOS provision -

"Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law."

USA and Philippine had rely on these provision to legitimize their arbitration. - in the event that China did not appear (absence) and failure to defend their case

The tribunal have power to proceed with the case and make judgement.

The reality is that such provision only apply in those situation

Where both parties had agree to the arbitration.(in writing)

Such provision cant apply when China did not agree to the arbitration.

For example,

When USA agree to ICJ ( take part in the preliminary hearing) and quit in the middle of the trial ( when ICJ rule that they have jurisdiction)

USA refuse to appear/failure to defend their case in the court.

ICJ allow the case to proceed. The absence of USA did not pose hindrance to the case.

This provision could apply in such scenario.

Read the rules of arbitration ( same rule apply in the USA soil)
It clearly say that arbitration require the consent of both parties.

Anonymous said...

I saw through the posts, Philippines ex govt was super cunning like a fox. China was like a panda being played around.

Look at China alone, i found it has two actors: PLA and civilian govt. PLA has competence on weaponry and spokesman smart. The civilian govt panda is played on fingers by Pinoys and US, being told what to do, being setup and explain to world countries why china has those Scs countries. Then allowed S Koreans to put US missiles right at its border: china dont know what to do.

The civilian govt is so busy keep being schemed to re act to Scs tribunal, Thaad, Shangrila shouting at PLA. The civilian did nothing, just nothing except explaining explaining, then offer the pinoys talkplease talkplease.

I wish the civilian govt be PLA smart, slap the pinoys and koreans and play US out.

Ban import from S Korea on LED, electronics handphones to china, ban pinoys electronic parts and fruits to china, sell and flood US bonds in financial market for Obama to scare before he goes off.

China civilian govt, do something to upkeep your reputation if Xi keep claiming china is big power. What power? It can be played out even by a poor country philippines in world stage.

China is laughable big country, stupid and incompetently skill in world stage. Go screw pinoy and korean and amercians now. Else get screwed harder again and again.

Chua Chin Leng aka redbean said...

I will mention two points here. One, the Philippines did not pay for the judges. They cannot afford to pay, money not enough. So who paid? No need to guess. What are the motives and agenda of the countries that paid for the legal fees?

Two, China already made its position very clear, in the media and in private meetings. China will go to war with any country that dares to challenge its South China Sea islands. The naval wargames have ended, but the naval ships are all there to take on anyone, including the US.

China is on a war footing and would no longer take the soft approach. Every country involved, including USA and Asean, has been informed of the Chinese position.

Anonymous said...

No use talking.

Such a simple diplomatic move already created panic in China govt and at least in internet.
PLA have to even mob reserves and resources.

How much money spend?Anyway China is rich.

The point is China dare not touch US and its allies. Otherwise at the min, the people would have been instigated to riot at US embassy. At least Vietnam has guts to retaliate.

China is so reactive when dealing with US.

Anonymous said...

There is a big difference between stupidity and being prudent.

A fool will use his head to knock against the wall. The prudent would bide his time until he is ready to take on the bully on equal terms.

Stupidity has no cure.

Anonymous said...

A fool will use his head to knock against the wall. The prudent would bide his time until he is ready to take on the bully on equal terms.

Totally agreed. But the problem is they said this 30 years ago. US is not only yesterday enemy. US is CCP enemy since KMT overthrown days.
Also ask those PLA soldiers who died in korea war, sino vietnam war and so on.They stop enemy aggression with what except own blood. You have humiliated them with dishonor saying that they are not ?prudent. You traitor!

So when is the dead line? What happens if China economy now at its peak start to decline as cheaper nations or robots take over?

Moreover China media has said that China military can deny US forces to operate in its backyard. All the more better if US decides to engage PLA on mainland.

Anonymous said...

Sun Tsu's strategy, you don't fight unless you can win. The Korean War, Vietnam War, China had to fight as it could not avoid the wars when it was much weaker than the enemy. If China can choose the time and place, it would be when it is sure to win.

Don't be silly and use irrelevant facts to make a silly case. Think, think, think. Now is still not the time to fight, but fight China would when pushed to a corner. The Hague ruling is the last straw and China has sent its warships to the South China to fight if needed but not to be the first to pull the trigger.

You can expect China to be more robust in kicking the little countries in the South China Sea going forward. Indonesia, Malaysia, Vietname, the Ppines, the days of fooling around is over. It is not business as usual after the ruling.

Anonymous said...

The time is up.

They cornered China now to face international criticism. Now when it is time to accelerate to push forward to test PLA capability. Then you all want stop and think it is silly to fight.

What irony? Now 9 dash line sovereignty is challenged officially and internationally for the first time in history. PLA is there for what?

If China only engages diplomatically with small neighbors after this incident, all the more they dont look up to China who they think is afraid of US. So more will lean towards US. It will be worse at the end of the day.

Now even Australia (so far away) also KPKB....

Now then only talk about Sun Tsu, isnt it the Americans who use clever strategy to corner and slap China.

Anonymous said...

The Americans have chickened out and want to use diplomacy knowing that China will fight them if they dare try to touch Chinese islands. Chinese warships all over the South China Sea now and ready for the Americans.

Try lah?

Anonymous said...

Agreed with Anon 11:38am

It seems that RB is the one who chicken out.

Now it is time to move the China PLA exercise to Spratly islands from Paracel islands to join the taiwan fleet (at least in name).

Newest Ballistic subs needs to be deployed west of US coast with public knowledge. Sailing from the surface though, and submerged when US forces spotted it.

I think it is time for china to bow and take the bullet to re- embrace Taiwan people. Openly change the policy to DPP and re emphasis on Blood brother ties.

For once, it is time to give a surprise to US navy and govt.

Anonymous said...

The PCA is not backed by the UN. Please be clear on this point.