The mischievous rulings of the Permanent Court of Arbitration exposed

The International Tribunal for the Law of the Sea is an independent judicial body established by the United Nations Convention on the Law of the Sea to adjudicate disputes arising out of the interpretation and application of the Convention. The Tribunal is composed of 21 independent members, elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea.

The Tribunal has jurisdiction over any dispute concerning the interpretation or application of the Convention, and over all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal (Statute, article 21)….

The mechanism established by the Convention provides for four alternative means for the settlement of disputes: the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII to the Convention, and a special arbitral tribunal constituted in accordance with Annex VIII to the Convention. 

A State Party is free to choose one or more of these means by a written declaration to be made under article 287 of the Convention and deposited with the Secretary-General of the United Nations (declarations made by States Parties under article 287).

If the parties to a dispute have not accepted the same settlement procedure, the dispute may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree….

The Tribunal has jurisdiction over all disputes concerning the interpretation or application of the Convention, subject to the provisions of article 297 and to the declarations made in accordance with article 298 of the Convention.

Article 297 and declarations made under article 298 of the Convention do not prevent parties from agreeing to submit to the Tribunal a dispute otherwise excluded from the Tribunal's jurisdiction under these provisions (Convention, article 299).

The above are text in the official site for the International Tribunal of the Law of the Sea.

Li Jinming, a professor of international maritime law at Xiamen University, pointed out that the use of terms such “UN tribunal” or “UN-backed tribunal” – frequently reported by Western media – is incorrect, as they confuse the PCA with the UN’s International Court of Justice (ICJ).

Read more: http://globalnation.inquirer.net/141125/arbitral-court-not-a-un-agency#ixzz4EXyUEu5K

So far the UN has never stood up to claim any relationship with the Permanent Court of Arbitration and it is puzzling why countries and reputable academics and even the crafty politicians would claim that this PCA is an UN institution or backed by the UN. What is obviously a glaring question now is that why would the Philippines, with its backers in the US and Japan, chose to go to the PCA and not the ITLOS? The distinction and authority of the two institutions are blinding. One is an official institution of the UN and the other is a private institution that has nothing to do with the UN.

The value of the PCA and its judgement is clearly a case of two willing parties agreeing to seek its arbitration. It is totally irrelevant and meaningless when another party refused to be arbitrated by the PCA. A one sided arbitration and judgment by the PCA is as good a piece of waste paper to an unwilling party. How silly it is for the Philippines and those calling for China to abide by a nothing more than a back lane commercial institution ruling is hilarious. The PCA’s ruling has no credibility and legal standing to an unwilling party. Period.

Again, why did the Philippines go the PCA and not the ITLOS? Base on the issues raised, the ITLOS would have thrown out the case as inadmissible. The ITLOS would abide by the provisions of UNCLOS, article 298, that forbid it to judge over an issue of territorial claims. And the Philippines and its backers, the Americans and Japanese knew very well that they did not have a prima facie case to start with.

More questions. For objectivity, fairness and justice, the provisions of the ITLOS are very specific, from the appointment of neutral judges to the consent of both litigants are spelt clearly. It does not arrogate itself to judge on territorial disputes without the consent of both parties. It has a panel of independent judges to hear the case, not judges to be appointed at the whims and fancies of interested parties and not judges that are paid by the interested parties as in this ICA case.

In this South China Sea dispute, it is obvious who foot the bills of the judges, the court and the legal counsels, and who did not. How could this be a fair trial conducted by disinterested parties? And what authority has a private institution, a ‘back lane’ tribunal has on sovereign states to demand that sovereign states respect and accept its judgment?

The Americans, the Japanese and the Philippines would want the rest of the world to believe that the PCA is an authoritative body, an international body sanctioned by the UN and has the jurisdiction and power to decide the fate of nation states and to delineate their territorial space, that its decision is final and binding and to disregard them is to ignore international laws and order.

How convenient to take such a stand with the western media and cronies singing the same tune, that the PCA represents the international law and order. What a joke. It is an insult to the intelligence of the people of the world and sovereign states to think they could pull wool over their eyes.  The PCA is a private institution whose judgment is only as good as willing litigants want it to be, nothing more, nothing less. It has no legal status and has no jurisdiction over national territorial issues.

In this South China Sea ruling it is as good as a farce, totally devoid of credibility and legal standing. It is a political and mischievous act to deceive the world that it is legal and binding on China. Anyone that believes the PCA ruling is a legal and binding judgment must be an idiot whose intellect is next to zero. The Americans, Japanese and the Philippines must be laughing themselves silly that there are so many simpletons in the world that could be so easily duped by such an amateurist ploy.

PS. It is important to enlighten the masses that did not have the full facts of the case and did not know what the Permanent Court of Arbitration is all about. Even main stream media are in a daze and telling its readers that the PCA is an UN backed institution. Did they do their homework, done their due diligence? They are supposed to be professional news makers, to check and double check their facts before putting it out as the truth, the whole truth and nothing but the truth.

How many main stream media are worthy and reliable in this regard? How many are plain stooges, paid by the Americans and Japanese to take a false stand? For sure they are not paid by the Pinoys as the Pinoys could not afford such wasteful paychecks. I am very sure that the judges in the PCA are not paid by the Pinoys. You know who were the paymasters? No prizes for the right answers.

Neo colonialism in the South China Sea

When the Europeans embarked on their conquest of the world, to colonise the world, the rule of the game was that might was right. They went about with their gunboats and cannons to rob, loot, rape and seize countries occupied by the natives they claimed to be savages, and they were given God’s power and blessing to take their lands and everything, including their lives.
 
The European practically seized every corner of the earth regardless of the objections and protests of their owners. Being newly industrialized countries, with new technologies and weapons, they just ran down the natives as sub humans. The natives have no rights to their land and possessions. The Europeans were there to take them away and to rule them.
 
There is a new kind of colonialism raising its ugly heads in the South China Sea. The difference, the colonialists were new nations that were once colonized, new states given independence by their former colonial masters. Now they are out to seize islands in the South China Sea. They did not know that these islands were there since time immemorial. They just knew, as they did not have the skills and technology to discover the existence and where about of these islands till they were given independence and starting to acquire some wealth and technology to discover the existence of such islands. They did not know that the islands were claimed by China centuries ago, centuries before they became independent nations of today.
 
Their ignorance of history, of the ownership of the islands are good enough reasons to claim these islands as theirs, and like the Europeans, totally ignored the rights of their owners. They are claiming their rights based on a new law set by a new organizations called UNCLOS. They demanded that the new laws take precedent over historical rights of ownership.
 
Another big difference is that the new countries were not the invincible Europeans running roughshod over the poorly equipped and armed natives. These little countries are trying to seize the islands of China, a super power with enough power to colonise them if needed to. What an irony? Little countries trying to colonise the territories of a bigger nation and power and think they could get away with it. Even the mighty Europeans had to return most of their colonized land except those that owned by smaller and weaker countries that they could over powered.
 
Would this new colonization of China’s islands in the South China Sea ended in the favour of the new little colonial powers?

Taiwan – The first victim of the Hague kangaroo court

The Taiwan govt thought by being a good boy, stayed out of the fray while the Americans and Japanese conspired with some Asean states to wrestle Chinese islands and the interest of Taiwan would be protected. Afterall Taiwan is being courted by both the Americans and Japanese and is considered to be one of them. Surely they will not do anything to harm the interest of Taiwan in the South China Sea. Taiwan also owned several islands there with the biggest Taiping Island or  Itu Aba, big enough to have an airfield and home to a few hundred Taiwanese.

What the Taiwanese did not bargain for and could not believe their collaborator friends would do them in, is the ruling that the Taiping Island is a reef. What a joke and what a shocking awakening. The Taiwanese have been sacrificed as a dispensable pawn. In the minds of the Americans and Japanese, Taiwan would return to China some day and it is better to cut Taiwan off the deal, that the Taiping Island pronounced by the kangaroo court is a reef and would not be entitled to a 200nm EEZ.

Now what are the Taiwanese going to do? Pay a visit to Washington to beg for a new ruling? Forget it, it is a done deal. Taiwan is enemy in the long run and its interests in the South China Sea would not be worthy to be protected. Protecting Taiwanese interests in the Taiping Island is as good as protecting China’s interests. The Americans and the Japanese have it all worked out.  Taiwanese is useful only in the short term to be used to pressure China but nothing more.

Thank you for being a good boy.  Taiping Island is a reef. Want to buy more mediocre American weapons to shoot at China? Taiwan would not be allowed to be turned into a Trojan Horse to undermine the strategic interests of the USA and Japan in the South China Sea. Period.

The kangaroo court rules in favour of the Philippines

The rulings of the Permanent Court of Arbitration came as expected. The rulings were as good as a done deal from the day the case was filed by the Philippines with the connivance of the Americans and the Japanese as the President of the PCA. What can China or Taiwan expect from the rulings of a kangaroo court that predetermined and prejudged the case, decided who are the judges, what they want to judge, how they want to judge and how they want to interpret the laws to achieve what they want to achieve? Does anyone in his right mind really believe that this was a fair trial based on legal principles?

No international body shall be given so much power and authority to decide on the issue of sovereignty of any country without the consent of that country.  This carnal principle cannot be violated at the peril of small states. Only a kangaroo court would have the arrogance to rule on sovereignty issues and declare that its decision is final and binding. When an international institution has abused its authority and power, it loses its right of existence, the very reason for its creation. China and Taiwan and other sovereign states that feared being bulldozed by such arbitrary rulings against their national interests without their consent, should walk out and quit the organization. China should rally its allies like Russia, North Korea, Iran and the central Asian states to leave the UNCLOS and close the door behind them. Let UNCLOS and the Permanent Court of Arbitration continue with their mischief, to rule against other hapless small countries.

With China and Russia joining the USA as non members of UNCLOS, the organization will become a meaningless lame duck. There is now no reason or benefits for China and its allies to be a member of an organization that has undone the goodwill and respect that it deserved, as a neutral, fair and just international body.

China must behave like a super power and stop being bullied by farcical institutions pretending to be world bodies and have power over countries without respecting their national sovereignty and territorial integrity. It is good that the PCA rulings came to expose the hypocrisy of what it is instead of what it was supposed to be.

China should leave these theatrical rulings behind and move on. The immediate task is to strengthen its military deployments in its islands, reinforce the weapons system in anticipation of a military assault by an American led joint military force.

The PCA rulings would also be an opportunity for China to see through the façade of hypocrisy of some Asean states, to know who they really are. Some Asean states would be compelled by these rulings and by the Americans to make a stand. China too should take a clear stand, to review all its agreements with the Americans done under the policy of appeasement, believing that the Americans would reciprocate goodwill with generosity. The truth is that the Americans have never been sincere in wanting to work and cooperate with China and have been treating China as their arch foe.

This is a wake up call for China, to identify friends or foes. China should no longer deceive itself that appeasing the Americans, trying to work with the Americans would be appreciated. It is a moment to be firm and resolute, to take a stand against this international conspiracy to violate China’s sovereignty and to contain China from expanding and developing its own islands in the South China Sea.

China must close ranks with its allies, especially with Russia, North Korea and Iran and the central Asia and African nation states. There is clear and present danger and unity is strength. The Americans and their allies have declared war on China. The days of trying to sleep with the devil are over. The devil will never change its evil ways.

The kangaroo court’s decision is the clearest sign of what’s more to come and China either stands and fights or would lose everything it has built for the last 40 years. The smaller states and those fence sitters would be watching how China stood up to this international bullying. Any weakness shown by China would only drive them quickly to the camps of the Americans. China must pick up the gauntlet and stare at the enemies with the nerve of steel, that it is not going to be pushed over.

Yes, D Day is here for China. This day would change the course of history and how the world would be going forward. The moment has come for China to take its place as a super power in the world stage and rebuild a New World Order that is fair to all countries big and small.

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?