The Philippines in the Permanent Court of Arbitration
The Permanent Court of Arbitration (PCA) is fairly well-known among Filipinos on account of the South China Sea dispute, which we won in 2016. It was, however, not the PCA that rendered the decision (called “Arbitral Award”), but an arbitral tribunal constituted under Annex VII of the United Nations (UN) Convention on the Law of the Sea, with the PCA serving as registry. This didn’t make the PCA, however, a UN court, as the establishment of the PCA in 1899 preceded that of the UN court and its main judicial organ, the International Court of Justice (ICJ), both established in 1945.
The ICJ is more known than the PCA, but both are equally important. There have been more cases at the PCA involving the Philippines than at the ICJ. No case has been filed by or against the Philippines before the ICJ other than for the country’s intervention in the 2002 Pulau Ligitan-Pulau Sipadan case between Malaysia and Indonesia, where Manila intervened in order of its interests in North Borneo (Sabah).
In contrast, there have been a number of investor-state disputes pertaining to the Philippines at the PCA through the years, in addition to the South China Sea arbitration. These are handled by the Office of the Solicitor General, but are not publicized as confidentiality is the default mode in arbitration.
Co-located with the ICJ at the Peace Palace in The Hague, Netherlands, the PCA is an intergovernmental organization that provides a range of dispute resolution services to the international community. While the ICJ is focused on judicial settlement of disputes, the PCA offers inquiry, mediation, conciliation, and arbitration. Together, they cover all the means for the peaceful settlement of disputes recommended in Article 33 of the UN Charter. Then UN secretary general Kofi Annan thus described them as “complementary institutions” in 2005.Despite its name, the PCA is not a court but a mechanism for the creation of an ad hoc arbitral tribunal or commission to hear and resolve disputes. From this original intent, the PCA has evolved to now provide administrative support in arbitrations involving various combinations of states, state entities, international organizations, and private parties, including certain commercial and investment disputes.
A panel of arbitrators—also known as members of the court—is among the PCA’s three-part structure, with the following members appointed by the Philippines: Chief Justice (ret.) Artemio V. Panganiban; Chief Justice (ret.) Reynato S. Puno; Justice (ret.) Jose C. Vitug, and former International Criminal Court Judge Raul C. Pangalangan.
The Philippines is relatively a newcomer in the PCA, becoming a member of the century-old institution only in 2010. I was one of those involved in the country’s accession to the PCA’s constitutive charter, The Hague Convention for the Pacific Settlement of International Disputes, in my then capacity as assistant secretary for treaties and legal affairs of the Department of Foreign Affairs. We had no inking at that time that the PCA would serve as registry for the South China Sea arbitration three years later.
Events turned full circle when I was assigned to The Hague in early 2021 and was elected the following year as acting president of the PCA Administrative Council for 2023-2024, the second non-Dutch to have held the position.
I have been asked whether the PCA’s Administrative Council hears and decides cases. The answer is no, but it provides general guidance and direction to the PCA’s work and supervises, along with the secretary general, the administration, budget, and expenditure of the organization. It is the arbitral tribunal chosen by the disputing parties that hears and decides cases.
In today’s complex and volatile world, the available means for the peaceful settlement of disputes are perhaps underutilized, yet are indispensable. Consider some of the cases before the PCA this year: two cases between Ukraine and Russia concerning the detention of Ukrainian naval vessels and servicemen, and coastal rights in the Black Sea, the Sea of Azov, and Kerch Strait.
It is foreseen that the PCA will play an even more critical role in the international legal order in the future. As I noted in my speech on June 26 at the UN’s New York headquarters during a briefing on the PCA’s current work, “In an era where international peace and security are facing serious challenges, the PCA’s work takes on even greater significance. Perhaps to the surprise of its founders 124 years ago, the PCA has not only endured but also adapted to the changing needs of the international community. It has thrived and undergone remarkable growth especially in the last three decades, akin to an experienced person who rediscovered his or her youthful strides.”
We look forward to a meaningful 125th anniversary of the PCA in 2024.
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J. Eduardo Malaya is Philippine ambassador to the Netherlands, editor of “Philippine Treaties in Force 2020” and “Frontlines of Diplomacy: Conversations with Philippine Ambassadors,” and acting president of the PCA Administrative Council for 2023-2024.
