Nature of SCS arbitral tribunal

China repeatedly refused to participate in the arbitration case initiated by the Philippines to resolve the maritime dispute in the South China Sea (SCS). It vehemently argued that the arbitral tribunal had no jurisdiction and that arbitration was counterproductive to peaceful negotiations.

Distinct from ICJ. After the arbitral tribunal issued its “award,” dated July 12, 2016, upholding most of the Philippine “submissions” and trashing China’s “nine-dash line,” China became even more hostile, periodically flexing its naval muscle in the SCS. It upped its rhetoric, condemning not only the “ill-grounded” arbitral award but also the “puppet” tribunal itself.

Citing the website of the International Court of Justice (ICJ), China explained that the ICJ is a “totally different institution from the Permanent Court of Arbitration (PCA) under whose secretariat assistance, an arbitral tribunal has issued an award on the South China Sea dispute.”

It further said that the arbitral tribunal is neither related to the ICJ nor “backed up by the United Nations.” Though both the ICJ and the arbitral tribunal are based in The Hague, “the ICJ, which is a totally distinct institution, has had no involvement in the abovementioned case.”

China posited that PCA “arbitration is not part of the international judicial system. Its arbitration may have some judicial validity but it is far from the adjudication of the ICJ in terms of sanctity and solemnity. Therefore, the PCA is not the best mechanism to settle disputes between states.”

I think China is correct in saying that the arbitral tribunal is totally different from the ICJ, which is the principal judicial organ of the United Nations. Moreover, if I may add, the PCA itself did not render the decision; it merely acted as the “Registry.”

Ad hoc tribunal. The very text of the award or decision identified the deciding body as “AN ARBITRAL TRIBUNAL CONSTITUTED UNDER ANNEX VII TO THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA” (capitalized fonts in original). It did not claim to be the “International Court of Justice.” Neither did it identify itself as the “Permanent Court of Arbitration,” even if many legal experts and media personalities inaccurately alluded to it as such.

To be crystal-clear, the 1982 United Nations Convention is referred to as UNCLOS, but spelled in the Inquirer as “Unclos” because under the Inquirer Stylebook, an abbreviation that can be pronounced as a word is written in caps and small case; hence, the Commission on Elections is abbreviated as “Comelec,” not “COMELEC.” On the other hand, when the abbreviation cannot be pronounced as one word, then the abbreviation is spelled in all caps; hence, we abbreviate the Department of Justice as “DOJ,” not “Doj.”

Under Art. 287(1) of the Unclos, a signatory state may choose any one or more of the following tribunals to settle the disputes it brings: 1) the International Tribunal for the Law of the Sea, or Itlos, based in Hamburg, Germany, (2) the International Court of Justice, or ICJ, based in The Hague, The Netherlands, 3) ad hoc arbitration (in accordance with Annex VII of Unclos); or, 4) a special tribunal constituted for certain categories of disputes (under Annex VIII of Unclos).

If an Unclos member-state, like the Philippines, has not expressed any preference for any of these four tribunals, the default means of settling disputes is Item 3 (ad hoc arbitration). More accurately, therefore, the adjudicating body of this dispute is “An Ad Hoc Arbitral Tribunal Constituted Under Annex VII of the 1982 Convention on the Law of the Sea.”

It is called “ad hoc” or temporary, because it was constituted only for this particular dispute. Despite its temporary nature, the tribunal’s proceedings and “awards” or decisions, when issued according to the provisions of Unclos, are nonetheless binding on Unclos signatories like the Philippines and China.

Tribunal composition. The ad hoc tribunal, constituted on June 21, 2013, is composed of five members. Judge Rudiger Wolfrum, a German, was chosen by the Philippines. A second member was to be named by China. Since China opted not to participate, the president of Itlos—pursuant to the provisions of Unclos—appointed Judge Stanislaw Pawlak, a Pole.

Thereafter, the president of Itlos named three more—Judge Jean-Pierre Cot, a Frenchman, Prof. Alfred H. A. Soons, a Dutch, and Judge Thomas A. Mensah of Ghana, as the presiding arbitrator.

After it was constituted, the ad hoc tribunal issued Administrative Directive No. 1 appointing the PCA as its “Registry,” the rough equivalent of the Office of the Clerk of Court. On July 15, 2013, the secretary general of the PCA advised the tribunal and the parties that Ms Judith Levine, PCA senior legal counsel, would serve as “registrar,” the rough equivalent of the clerk of court. The PCA has acted as “Registry” in 11 out of 12 arbitration cases filed under Annex VII of Unclos.

The PCA is not a “court.” As “Registry,” it provides administrative services to the parties and the arbitrators. Specifically, it transmits oral and written communications from the parties to the arbitral tribunal and vice versa, and among the parties; maintains an archive of official documents; arranges the arbitrators’ fees; holds the arbitration funds and pays expenses; makes available the hearing rooms in the Peace Palace or elsewhere; and carries out any task entrusted to it by the parties or by the arbitral tribunal.

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