Philippines v.

China (also known as The South China Sea Arbitration) was an arbitration case brought by
the Republic of the Philippines under the arbitration provisions of the United Nations Convention on the Law of the
Sea(UNCLOS)[2][3][4] against the People's Republic of China concerning certain issues in the South China
Sea[5] including the legality of China's "nine-dotted line" claim over the South China Sea under the UNCLOS. On 19
February 2013, China officially refused to participate in the arbitration because, according to China, its 2006
declaration under article 298[6] covers the disputes brought by the Philippines and that this case
concerns sovereignty, thus it deems the arbitral tribunal formed for the case has no jurisdiction over the issue. [7] On
7 December 2014, a position paper was published by China to elaborate its position. [5][8] On 29 October 2015,
the arbitral tribunal ruled that it has jurisdiction over the case,[9] taking up seven of the 15 submissions made by the
Philippines.[10]
On 12 July 2016, the tribunal ruled in favor of the Philippines against China over territorial disputes in the South
China Sea;[11][12] in its major ruling, the tribunal ruled that China has "no historical rights" based on the "nine-dash line"
map.[11][12] China has rejected the ruling. Taiwan also rejected the ruling. [13]
The United Nations holds no position on the case, and the International Court of Justice has had no involvement.

The dispute has been affected by the fact that, after Japan renounced all claims to the Spratly Islands and
other conquered islands and territories in the Treaty of San Francisco and Treaty of Peace with
theRepublic of China (Taiwan) signed on September 8, 1951, it did not indicate successor states [14] since
China was not invited to the treaty talks held in San Francisco. In reaction to that, on 15 August, the
Chinese government issued the Declaration on the Draft Peace Treaty with Japan by the US and the UK
and on the San Francisco Conference by the then Foreign Minister Zhou Enlai, reitirating China's
sovereignty over the archipelagos in the South China Sea, including theSpratly Islands, and protesting
about the absence of any provisions in the draft on who shall take over the South China Sea islands
following Japan's renouncement of all rights, title and claim to them. It reiterated that "the Chinese
government of the day had taken over those islands" and that the PRC's rightful sovereignty "shall remain
intact".[15]
On 28 April 1952, the United States presided over the signing of theTreaty of Peace between Japan and
the Republic of China. Article 2 of the document provided that "It is recognized that under Article 2 of the
Treaty of Peace which Japan signed at the city of San Francisco on 8 September 1951 (hereinafter
referred to as the San Francisco Treaty), Japan has renounced all right, title, and claim to Taiwan
(Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and the Paracel Islands." [15]
The Philippines bases its claim on its geographical proximity to the Spratly Islands, [16] even though its
claim bears no weight on sovereignty ownership because sovereignty of islands is established by legal
relations rather than geographical proximity.[17][18]
In May 1956, the dispute escalated after Filipino national Tomas Cloma and his followers settled on the
islands and declared the territory as "Freedomland", now known as Kalayaan for himself and later
requested to make the territory a protectorate of the Philippines. [19] Tomas Cloma even stole China
1

(ROC)'s national flag from the Taiping Island. In July 1956, he apologized officially for his act and he
surrendered the flag he stole to China's embassy in Manila. On Oct 2nd 1956, he wrote a letter and
ensured he would not make further training voyages or landings in the territorial waters of China (ROC). [20]
Philippine troops were sent to three of the islands in 1968, [19] when the Philippines were under
President Ferdinand Marcos. In the 1970s, some countries began to invade and occupy islands and reefs
in the Spratlys. [21][22] The Spratlys were placed under the jurisdiction of the province of Palawan in 1978. [19]
The People's Republic of China (PRC) claims it is entitled to the Paracel and Spratly Islands because they
were seen as integral parts of the Ming dynasty.[16] China and Taiwan have these same territorial claims.
[16]

The Republic of China (Taiwan) took control of the largest island - Taiping Island - in the group since

1946.[19]
Vietnam states that the islands have belonged to it since the 17th century, using historical documents of
ownership as evidence.[16] Hanoi began to occupy the westernmost islands during this period. [16]
In the early 1970s, Malaysia joined the dispute by claiming the islands nearest to it. [23]
Brunei also extended its exclusive economic zone, claiming Louisa Reef.[23]

Optional exceptions to applicability of compulsory procedure[edit]

Article 298 of Section 3 of Part XV of the Convention provides optional exceptions to applicability of
compulsory procedures provided in Section 2. China made declaration in accordance with the UN
Convention on the Law of the Sea in 2006 not to accept any of the procedures provided for in section 2 of
Part XV of the Convention. Many countries including the United Kingdom, Australia, Italy, France, Canada,
and Spain made similar declarations to reject any of the procedures provided for in sections 2 of Part XV
of the Convention with respect to the different categories of disputes. [24][25]

Participants[edit]
The arbitration involved the Philippines and China. [26]

Philippine stance[edit]
The Philippines contended that the "nine-dotted line" claim by China is invalid because it violates the
UNCLOS agreements about exclusive economic zones and territorial seas.[27] It says that because most of
the features in the South China Sea, such as most of the Spratly Islands, cannot sustain life, they cannot
be given their own continental shelf as defined in the convention.[28]

Chinese stance[edit]
China refused to participate in the arbitration, stating that several treaties with the Philippines stipulate that
bilateral negotiations be used to resolve border disputes. It also accuses the Philippines of violating the
voluntary Declaration on the Conduct of Parties in the South China Sea, made in 2002
2

between ASEAN and China, which also stipulated bilateral negotiations as the means of resolving border
and other disputes.[29][30][31] China issued a position paper in December 2014 arguing the dispute was not
subject to arbitration because it was ultimately a matter of sovereignty, not exploitation rights. [32] Its refusal
will not prevent the PCA tribunal from proceeding with the case. [33] After the award ruling, the PRC issued
a statement rejecting it as 'null' and having decided not to abide by the arbitral tribunal's decision, said it
will "ignore the ruling".[34]

Claimants of the South China Sea[edit]

Taiwanese stance[edit]
The arbitral tribunal has not invited Taiwan to join the arbitration, and no opinion of Taiwan has been
sought.[35] The Philippines claimed that Taiping Island is a rock. In response,[36] President Ma Ying-jeou of
Taiwan rejected the Philippines' claim as "patently false". [37] Taiwan invited the Philippines and five
arbitrators to visit Taiping Island; the Philippines rejected the invitation, and there was no response from
the PCA tribunal.[38]

Vietnamese stance[edit]
On December 11, 2014, Vietnam filed a statement to the tribunal which put forward three points: 1)
Vietnam supports the filing of this case by the Philippines, 2) it rejects China's "nine-dashed line", and 3) it
asks the PCA tribunal to take note of Vietnam's claims on certain islands such as the Paracels.[39]

Other stances[edit]
Brunei sent its own claim through a preliminary submission. [40] In May 2009, Malaysia and Vietnam, as well
as Vietnam alone, filed claims to the International Tribunal for the Law of the Sea with regard to the
islands [clarification needed]. This was in relation to extending their claimed continental shelves and Exclusive
Economic Zones. The People's Republic of China rejected the claims since those violate the "nine-dotted
line". The Philippines challenged the Malaysian claim stating that the claims overlap with the North Borneo
dispute.[41]
Indonesia made a comment on China's claim by saying that the features are rocks and cannot sustain life,
effectively calling the Chinese claim invalid. The Philippines echoed Indonesia's claims, further stating that
the islands belong to them through geographic proximity.[41][42]

Arbitration[edit]
Hearings[edit]
On July 7, 2015, case hearings began with the Philippines asking the tribunal to invalidate China's claims.
The hearings were also attended by observers from Indonesia, Japan, Malaysia, Thailand and Vietnam.
[9]

The case has been compared to Nicaragua v. United States due to similarities of the parties involved
3

such as that a developing country is challenging apermanent member of the United Nations Security
Council in an arbitral tribunal.[43]
On 29 October 2015, the PCA tribunal ruled that it had the power to hear the case. It agreed to take up
seven of the 15 submissions made by Manila, in particular whether Scarborough Shoal and low-tide areas
like Mischief Reef can be considered islands. It set aside seven more pointed claims mainly accusing
Beijing of acting unlawfully to be considered at the next hearing on the case's merits. It also told Manila to
narrow down the scope of its final request that the judges order that "China shall desist from further
unlawful claims and activities."[10]
The arbitral tribunal scheduled the hearing on merits of the case from 24 to 30 November 2015. [44]

Award on Jurisdiction and Admissibility[edit]

On 29 October 2015, the PCA published the award by the tribunal on Jurisdiction and Admissibility [45] for
the case. The tribunal found that it has jurisdiction to consider the following seven Philippines
Submissions. The number is the Philippines Submissions number. The tribunal reserved consideration of
its jurisdiction to rule on No. 1, 2, 5, 8, 9, 12, and 14.

No.3 Philippines position that Scarborough Shoal is a rock under Article 121(3).

No.4 Philippines position that Mischief Reef, Second Thomas Shoal, and Subi Reef are low tide
elevations that do not generate entitlement to maritime zones.

No.6 Whether Gaven Reef and McKennan Reef (including Hughes Reef) are low-tide elevations
that do not generate any maritime entitlements of their own".

No.7 Whether Johnson Reef, Cuarteron Reef, and Fiery Cross Reef do or do not generate an
entitlement to an exclusive economic zone or continental shelf.

No.10 "premised on [the] fact that China has unlawfully prevented Philippine fishermen from
carrying out traditional fishing activities within the territorial sea of Scarborough Shoal."

No.11 Chinas failure to protect and preserve the marine environment at these two shoals
[Scarborough Shoal and Second Thomas Shoal].

No.13 Philippines protest against Chinas purported law enforcement activities as violating the
Convention on the International Regulations for the Prevention of Collisions at Sea and also violating
UNCLOS.

The tribunal stated in the award that there are disputes in all of the 15 submissions from the Philippines,
[45]

but for submissions such as No.3, No.4, No.6 and No.7, no known claims from the Philippines prior to

the initiation of arbitration exist, and China was not aware or opposed such claims prior to the initiation of
4

arbitration. Chinese Society of International Law (CSIL) states that the tribunal was trying to hide its
incapability to prove that maritime entitlements of the nine features constitute the disputes. [5]
For Submission No.8 to No.14, the tribunal held the view that lawfulness of China's activities in the South
China Sea is not related to sovereignty. CSIL has asserted that disagreements concern territorial
sovereignty, and constitute no dispute with respect to the claims advanced by the Philippines. [5]

Award[edit]
On July 12, 2016, the Permanent Court of Arbitration published an arbitration award by the tribunal which
it states is final and binding as set out in the Convention. [34][46] Conclusions expressed in the award included
the following:
Regarding the "Nine-Dash Line" and China's claim in the maritime areas of the South China Sea [47]

The [UNCLOS] Convention defines the scope of maritime entitlements in the South China Sea,
which may not extend beyond the limits imposed therein. [48]

Chinas claims to historic rights, or other sovereign rights or jurisdiction, with respect to the
maritime areas of the South China Sea encompassed by the relevant part of the nine-dash
line are contrary to the Convention and without lawful effect to the extent that they exceed the
geographic and substantive limits of Chinas maritime entitlements under the Convention. The
Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of
the limits imposed therein.[49]

Regarding the status of features as above/below water at high tide (Submissions no. 4 and 6)

High-tide features: (a) Scarborough Shoal, (b) Cuarteron Reef, (c) Fiery Cross Reef, (d)
Johnson Reef, (e) McKennan Reef, and (f) Gaven Reef (North). [50]

Low-tide elevations: (a) Hughes Reef, (b) Gaven Reef (South), (c) Subi Reef, (d) Mischief
Reef, (e) Second Thomas Shoal.[51]

Hughes Reef lies within 12 nautical miles of the high-tide features on McKennan Reef and Sin
Cowe Island, Gaven Reef (South) lies within 12 nautical miles of the high-tide features at
Gaven Reef (North) and Namyit Island, and that Subi Reef lies within 12 nautical miles of the
high-tide feature of Sandy Cay on the reefs to the west of Thitu. [52]

Regarding the status of features as rocks/islands (Submissions no. 3, 5, and 7)

Scarborough Shoal contains, within the meaning of Article 121(1) of the Convention, naturally
formed areas of land, surrounded by water, which are above water at high tide. However, under
Article 121(3) of the Convention, the high-tide features at Scarborough Shoal are rocks that
5

cannot sustain human habitation or economic life of their own and accordingly shall have no
exclusive economic zone or continental shelf. [53]

Johnson Reef, Cuarteron Reef, and Fiery Cross Reef contain, within the meaning of Article
121(1) of the Convention, naturally formed areas of land, surrounded by water, which are
above water at high tide. However, for purposes of Article 121(3) of the Convention, the hightide features at Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are rocks that cannot
sustain human habitation or economic life of their own and accordingly shall have no exclusive
economic zone or continental shelf.[54]

Tthe high-tide features at Gaven Reef (North) and McKennan Reef are rocks that cannot
sustain human habitation or economic life of their own and accordingly shall have no exclusive
economic zone or continental shelf.[55]

Mischief Reef and Second Thomas Shoal are both low-tide elevations that generate no
maritime zones of their own [and] that none of the high-tide features in the Spratly Islands are
capable of sustaining human habitation or an economic life of their own within the meaning of
those terms in Article 121(3) of the Convention. All of the high-tide features in the Spratly
Islands are therefore legally rocks for purposes of Article 121(3) and do not generate
entitlements to an exclusive economic zone or continental shelf. There is, accordingly, no
possible entitlement by China to any maritime zone in the area of either Mischief Reef or
Second Thomas Shoal and no jurisdictional obstacle to the tribunals consideration of the
Philippines Submission No. 5.[56]

Both Mischief Reef and Second Thomas Shoal are located within 200 nautical miles of the
Philippines coast on the island of Palawan and are located in an area that is not overlapped by
the entitlements generated by any maritime feature claimed by China. It follows, therefore, that,
as between the Philippines and China, Mischief Reef and Second Thomas Shoal form part of
the exclusive economic zone and continental shelf of the Philippines. [57]

Regarding alleged interference with the Philippines' sovereign rights in its EEZ and continental
shelf (Submission no. 8)

China has, through the operation of its marine surveillance vessels with respect to M/V Veritas
Voyager on 1 to 2 March 2011 breached Article 77 of the Convention with respect to the
Philippines sovereign rights over the non-living resources of its continental shelf in the area of
Reed Bank [and] that China has, by promulgating its 2012 moratorium on fishing in the South
China Sea, without exception for areas of the South China Sea falling within the exclusive
economic zone of the Philippines and without limiting the moratorium to Chinese flagged
6

vessels, breached Article 56 of the Convention with respect to the Philippines sovereign rights
over the living resources of its exclusive economic zone. [58]
Regarding alleged failure to prevent Chinese nationals from exploiting the Philippines' living
resources (Submission no. 9)

China has, through the operation of its marine surveillance vessels in tolerating and failing to
exercise due diligence to prevent fishing by Chinese flagged vessels at Mischief Reef and
Second Thomas Shoal in May 2013, failed to exhibit due regard for the Philippines sovereign
rights with respect to fisheries in its exclusive economic zone. Accordingly, China has breached
its obligations under Article 58(3) of the Convention. [59]

Regarding China's actions in respect of traditional fishing at Scarborough Shoal (Submission no.
10)

China has, through the operation of its official vessels at Scarborough Shoal from May 2012
onwards, unlawfully prevented Filipino fishermen from engaging in traditional fishing at
Scarborough Shoal.[60]

Regarding alleged failure to protect and preserve )the marine environment (Submissions no. 11
and 12(B))

China has, through its toleration and protection of, and failure to prevent Chinese fishing
vessels engaging in harmful harvesting activities of endangered species at Scarborough Shoal,
Second Thomas Shoal and other features in the Spratly Islands, breached Articles 192 and
194(5) of the Convention.[61]

China has, through its island-building activities at Cuarteron Reef, Fiery Cross Reef, Gaven
Reef (North), Johnson Reef, Hughes Reef, Subi Reef and Mischief Reef, breached Articles
192, 194(1), 194(5), 197, 123, and 206 of the Convention. [62]

Regarding occupation and construction activities on Mischief Reef (Submission no. 12)

China has, through its construction of installations and artificial islands at Mischief Reef without
the authorisation of the Philippines, breached Articles 60 and 80 of the Convention with respect
to the Philippines sovereign rights in its exclusive economic zone and continental shelf [and],
as a low-tide elevation, Mischief Reef is not capable of appropriation. [63]

Regarding operation of law enforcement vessels in a dangerous manner (Submission no. 13)
7

China has, by virtue of the conduct of Chinese law enforcement vessels in the vicinity of
Scarborough Shoal, created serious risk of collision and danger to Philippine vessels and
personnel. The Tribunal finds China to have violated Rules 2, 6, 7, 8, 15, and 16 of the
COLREGS and, as a consequence, to be in breach of Article 94 of the Convention. [64]

Regarding aggravation or extension of the dispute between the parties (Submission No. 19)

China has in the course of these proceedings aggravated and extended the disputes between
the Parties through its dredging, artificial island-building, and construction activities [in several
particulars itemized in the award]. [65]

Regarding the future conduct of the parties (Submission no. 15)

Both Parties are obliged to comply with the Convention, including its provisions regarding the
resolution of disputes, and to respect the rights and freedoms of other States under the
Convention. Neither Party contests this.[66]

Timeline[edit]

January 22, 2013 Philippines served China with notification and Statement of Claim [67]

February 19, 2013 China rejected the Philippines Notification

July 11, 2013 First meeting of the arbitral tribunal at The Hague

July 31, 2013 Philippines commented on draft Rules of Procedure for the Tribunal

August 1, 2013 China indicated that it does not accept the arbitration initiated by the

Philippines

August 27, 2013 Procedural Order No 1 issued via PCA Press Release on behalf of the

arbitral tribunal[68]

March 30, 2014 Submission of the Philippines Memorial

May 1415, 2014 Second meeting of the arbitral tribunal at The Hague

May 21, 2014 China comments on draft Procedural Order No 2 and observes that it does

not accept the arbitration initiated by the Philippines.

May 29, 2014 Philippines comments on draft Procedural Order No 2

June 3, 2014 Procedural Order No 2 issued via PCA Press Release on behalf of the

arbitral tribunal[69]

December 15, 2014 China had not filed a Counter-Memorial [70]

December 17, 2014 Procedural Order No 3 issued via PCA Press Release on behalf of

the arbitral tribunal[70]

March 16, 2015 The Philippines made a Supplemental Written Submission to the Arbitral

Tribunal[71]

April 2021, 2015 Third meeting of the arbitral tribunal at The Hague [71]

April 22, 2015 Procedural Order No 4 issued via PCA Press Release on behalf of the

arbitral tribunal[71]

July 713, 2015 Hearing of the arbitral tribunal at The Hague [72][73]

October 29, 2015 PCA issued the Award on jurisdiction and admissibility [45]

July 12, 2016 - The tribunal of PCA gave a verdict claiming that China has no legal basis or

historic claim on the Nine-dash line. China rejected the ruling.

Academic analysis[edit]
Role of the arbitral tribunal[edit]

Legal scholar Anthony Carty of University of Hong Kong states in a published book that the

case has been criticized and the arbitration tribinal now faces a claim which is not justiciable. [74]

Chinese Society of International Law, explains in a published report that the Award for the

case is completely erroneous. It's against the principle of international law. [5]

Abdul G. Koroma, former judge of the International Court of Justice, states that a tribunal is

not allowed to pass judgement on a territorial and boundary dispute since a tribunal doesn't have
competence nor power to judge such matter.[75]

Wu Shicun, president and senior research fellow of the National Institute for South China

Sea Studies, says that Chinas claims are based on historic evidence. Philippines' occupation of
South China Sea islands is illegal. The arbitration is against international law, and the only way for a
peaceful resolution is to respect the commitment to negotiations. [76]

Stefan Talmon, director of the Institute of Public International Law at the University of Bonn,

states that the Permanent Court of Arbitration does not have jurisdiction over territorial issues which
are governed by customary international law, not UNCLOS.[77]

Antonios Tzanakopoulos, associate professor of public international law at the University of

Oxford, states in his published paper that the dispute of the case is obviously about sovereignty and
maritime delimitation. Sovereignty and maritime delimitation are beyond the stipulation of the
UNCLOS.[78][79]

Tom Zwart, Professor of Law, Utrecht University, and director of the Cross-Cultural Human

Rights Centre, states that the case breaks down the culture of harmony in Asia. To bring people
together, tea should be offered, not a sword. In Asia, the award will be considered as the fruit of a
poisonous tree. The case has so many actors and can affect many interests, justice can never be
rendered, the dispute should not be handled by a judicial tribunal. The United States should be
prevented from getting involved because it is not a direct stakeholder of this issue. [80][81]

Australian international lawyers Rothwell [who?] and Stephens[who?] wrote in a published book

that [t]he Part XV dispute settlement mechanisms ... do not have jurisdiction over disputes arising
under general international law [5]

China's nine-dashed line[edit]

Kuen-Chen Fu, dean of South China Sea Institute, Xiamen University, chief editor of China

Oceans Law Review, states that in contract, a gesture like the nine-dashed line does not constitute
an offer. China demarcated the u-shaped line with the help of the United States legal office in 1947.
Countries including the Philippines and the United States were acknowledged the existence of the
nine-dashed line. The US requested permission to visit the Spratly Islands in 1960. [20]

Jonathan London, Leiden University professor of political economy in Asia, said that the the

ruling could be a "transformative moment" in the region and will let such nations say to China:
"Look, here are the results of an international organization that has found that your claims have zero
historical basis."[82]

Ted L. McDorman, professor at the Faculty of Law, University of Victoria, states in a

published book that historic waters are not regulated under UNCLOS. The ICJ in the 1982
Tunisia/Libya case clearly stated that historic rights of waters are governed by customary
international law, not UNCLOS.[83]

John Norton Moore, director of the Center for National Security Law and the Center for

Oceans Law and Policy, said that the China's nine-dash line claim is illegal and has no basis in the
10

UNCLOS.[84] He also asserted that the nine-dashed line is not in China's interest, saying: "If others
were to do the same thing around the world, that China has done in the nine-dash line, it would be
extremely harmful to the interests of China around the world. [85]

Wu Shicun, president and senior research fellow of the National Institute for South China

Sea Studies, stated that the China's nine-dash line came almost half a century ahead of the
UNCLOS, there is no reason to ask the nine-dash line to conform to a later convention. The nonretroactivity is a basic principle of international law, the existing facts of the past cannot be
overwritten

[clarification needed]

by today's law.[86]

Claims by the Philippines[edit]

Heydarian wrote that the country is "engaged in a crucial effort to ensure all claimant states

align their claims in accordance to prevailing international legal regimes," but also noted that "the
Aquino administration may have placed too much emphasis on its inherently uncertain lawfare at
the expense of much-needed bilateral dialogue with its powerful neighbor, which seems determined
to snub and defy the ongoing hearing at The Hague at all costs." [87]

Zou Keyuan, Harris Professor of International Law at the Lancashire Law School of

the University of Central Lancashire, United Kingdom, states in his published book that possible
EEZ of the Spratly Archipelago is ignored in the Philippines' unilateral EEZ claim. Sovereignty over
land territory always controls maritime jurisdiction. The Philippine argument of EEZ in the case may
be an effort to muddy the juridical water and to try gain some international support for its weak
sovereignty claim.[88]

Kuan-Hsiung Wang, a professor at the Graduate Institute of Political Science, National

Taiwan Normal University, has characterized the claims by the Philippines as "Dubious", opining
that the Philippines is undermining efforts to resolve disputes and promote stability. [89]

Potential ruling[edit]

Philippine Associate Justice Antonio Carpio states three possible ruling of the tribunal; (1)

The validity of the nine dash line claim of China is not ruled which he describes as a worse case
scenario for the Philippines saying it would not stop China from enforcing the claim and block
activities of other claimants increasing tensions, (2) the nine dash line is ruled ineffective, Taiping
Island is not entitled to an EEZ, and confirms the status of low-tide elevations identified by the
Philippines, which he describes a best scenario for his country, (3) The nine dash line is declared
invalid, and theScarborough shoal is declared a traditional fishing ground for Filipinos although it
would not resolve issues the southern portion of the South China Sea claimed by the Philippines,
but adds that such scenario already a "big win" for the Philippines. He concedes that the arbitration
11

would not resolve the dispute completely. He suggest another potential solution by declaring the
South China Sea as a International Marine Protected Area where all claimant countries suspend
their claims for 100 years which he says is a win-win for China and the Philippines. [90]

Other parties[edit]

Nico Schrijver, academic director of the Leiden University's Grotius Center for International

Legal Studies, stated that disputes should be solved by the claimant countries, and big powers such
as the United States must be prevented from getting involved. [91][unreliable source?]

The Permanent Court of Arbitration (PCA) is an intergovernmental organization located at The Hague in
the Netherlands (with 121 member states). The PCA is not a court, but rather a bureaucracy that provide services
of arbitral tribunal to resolve disputes between member states, international organizations, or private parties arising
out of international agreements. [1][2] The cases span a range of legal issues involving territorial and maritime
boundaries, sovereignty, human rights, international investment, and international and regional trade. It should not
be confused with the International Court of Justice which is the primary judicial branch of the United Nations, while
the PCA is not a UN agency.[3][4][5]
The PCA was established in 1899 by the first Hague Peace Conference. ThePeace Palace was built for PCA in The
Hague in 1913. The building also houses the separate International Court of Justice.

Organization[edit]
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. [6] 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. Many decisions and related documents are available on the PCA's website. The court's caseload has
increased since then.[7] Some media have incorrectly described the tribunal as "UN tribunal" or "UN-backed tribunal",
the UN does not back the tribunal and the incorrect UN or UN-backed attribute confuses the PCA with the UN's
ICJ. [8][9]

Income and expenses[edit]

12

The income of the PCA relies on the arbitration services it provides to its clients. [2]Unlike the judges from
the International Court of Justice who are paid by the UN,[10]members of the PCA are paid from that same income the
PCA earns.[11]

Fees and Costs[edit]

The Permanent Court of Arbitration is not a Non-governmental organization. The arbitrators charge and get paid by
the case. It is not clear how to divide the money between the arbitrators and the court. There are fixed costs for
certain procedures such as a non-refundable processing fee of 2000. For arbitration cases, there are no fixed
costs, the costs can vary from case to case and the costs are negotiable. [12]

Participation[edit]
Main article: List of parties to the Hague Conventions of 1899 and 1907
As of March 2016, 119 countries are parties to one or both of the founding Conventions of the PCA. [13]

History[edit]
The court is one of the oldest institutions for international dispute resolutions. The court was established in 1899 by
the first Hague Peace Conference under Articles 20 to 29 of the 1899 Hague Convention for the Pacific Settlement
of International Disputes. At the second Hague Peace Conference, the earlier Convention was revised by the
1907 Convention for the Pacific Settlement of International Disputes. The Conference was convened at the initiative
of Tsar Nicholas II of Russia "with the object of seeking the most objective means of ensuring to all peoples the
benefits of a real and lasting peace, and above all, of limiting the progressive development of existing armaments." [14]
There have been only 16 arbitration requests accepted (the outcome was accepted by the parties involved) in the
PCA's 117 year history.[15]

Enforcement
In agreeing to arbitration under the PCA Rules, the parties undertake to carry out the award
without delay.76 Awards in cases involving private parties are generally enforceable in the
same manner as any international commercial arbitration award, for example within the
municipal court system of any court having jurisdiction, or pursuant to the New York
Convention.77 To the extent that the arbitration law of the place of arbitration requires that
the award be filed or registered, the pertinent rules prescribe that the tribunal shall do
this.78 As pointed out above, the waiver of jurisdictional immunity by States and
intergovernmental organizations that arises from an agreement to arbitrate under the PCA
Rules does not amount to a waiver of immunity from execution.
ENFORCEMENT OF ARBITRAL AWARDS
It is obvious that States, which willingly submit their difference to arbitral proceedings, will consent to
the awards of the tribunal. Therefore, if they had not accepted to run the risk of an opposite award, they would
not have submitted the disputes for arbitral settlement in the first place. As has been said by Carlston, by
entering into an arbitration agreement and participating in the proceedings before the tribunal, the parties
13

implicitly engage to execute the award when rendered. 1 In this regard, Article 37 of the Hague Convention of
1907 on the Pacific Settlement of International Disputes had stated, recourse to arbitration implies an
engagement to submit in good faith to the award. Article 13 of the Covenant of the League of Nations
provides, the members of the League agree that they will carry out in full good faith any award or decision that
may be rendered. In the event of any failure to carry out such an award or decision, the Council shall
propose what steps should be taken to give effect thereto. The main features of these Conventions were
recognition and enforcement of international arbitral awards, but the question most commonly asked with
regard to international awards is: How can they be enforced and what is the sanction for non-enforcement?
About the method of enforcement of any international award experience shows that the question of
sanction is one of very minor importance in practice. It can be claimed that the obligations, which are most
generally enforced and are most effective, are independent of force as a sanction. 2 Thus, one finds that the
most of international awards have practically been accepted with immediate consent and fulfilment. 3 Again, in
accordance with the vast experience of international arbitration, it has been proved that the awards are
generally carried out.
Methods for Securing the Enforcement of Awards
There are some coercive measures that may be taken by the successful party, directly or in conjunction
with other States, to compel the recalcitrant party to carry out the arbitral award imposing obligations on it, if
the loser party refuses to accept the award and enforces it. The measures that could be taken unilaterally by
the successful party are called "self-help" and classified under the heading of diplomatic, economic and military
pressures against the losing party. The term of self-help is well known in law, and arises from the nature of
international law as a legal norm for regulating the inter-state activities of sovereign States.
(i) Diplomatic and Economic measures
One of the methods for enforcement of arbitral awards through successful party is diplomatic and
economic measures that includes negotiations, diplomatic protests and finally rupture of diplomatic relations
and economic sanctions.
The mentioned measures will have the positive effect if the recalcitrant party has considerable
economic interests in the territory of successful State, because it is imaginable that a threat to break diplomatic
relations could have a decisive effect on the enforcement of the related award. For example, in the Lena
Goldfields case (1933)4, in which an arbitral award had been rendered against the USSR in favour of the
Government of the United Kingdom, the latter apparently linked its negotiation for implementation of the award
to the discussion of a trade agreement between the two countries, a measure earlier which resulted in a
settlement shortly thereafter.
As mentioned, other method of self-help with respect to enforcing the arbitral awards is the use of
economic sanctions against the losing party by the successful State with a view to bring pressure on it and to
submit to the award and perform it. Seizure of property belonging to the recalcitrant State or restrictions by the
successful party on the use of the recalcitrant States property are the methods of economic sanctions which
can be considered. Use of such methods does not appear to have been prohibited in international law since
1

K.S. Carlston, The Process of International Arbitration (New York: 1946), p.205.

Ralston, supra note 26, at p. 108.

Ibid., p. 109.

See, Nussbaum, The Arbitration between the Lena Goldfields, Ltd. And the Soviet Government, 36 Cornell Law Review
(1950) 31. See also, Oscar Schachter, The Enforcement of International Judicial and Arbitral Decisions, 54 AJIL (1960) 6.

14

they do not involve the use of force which has been prohibited under the Charter of the United Nations. 5 The
effectiveness of such measure depends first on the availability of property belonging to the recalcitrant State in
the territory of the successful party, and second on the extent of such available property. The seizing of
property to compel compliance by a recalcitrant State seems to be a particularly suitable device since it does
not involve appropriation of property affected.
(ii) Retorsion and Reprisals
Another steps regarding enforcement of awards by successful party will be retorsion and reprisals.
Under customary international law, retorsion and reprisals are two separate categories of self-help, which have
been recognised and accepted by States. According to Verma 'retorsion is a retaliatory measure, resorted by
a State against unfriendly, discourteous or inequitable acts of another State. These acts are of the similar
nature as those taken by the offending State'. 'Reprisals are retributive or punitive in nature. They are
accepted by a State to seek redress from another State for its illegal or unjustified acts. The main purpose of
reprisals is to compel the delinquent State to discontinue the wrongful act and compensate the State wronged.
Reprisals are such injurious and otherwise internationally illegal acts of one State against another as are
exceptionally permitted for the purpose of compelling the latter to consent to a satisfactory settlement of a
difference created by its own international delinquency'.6
As Oppenheim said, the difference between the two is: retorsion is the technical term for retaliation for
discourteous, or unkind, or unfair and inequitable acts by acts of the same or similar kind; it is an act that is
within the competence of its author.7 He said, also: [w]hereas retorsion consists in relation for discourteous,
unfriendly, unfair, and inequitable acts by acts of the same or a similar kind, and has nothing to do with
international delinquencies, reprisals are acts, otherwise illegal, performed by a State for the purpose of
obtaining justice for an international delinquency by taking the law into its own hands. It is, of course, possible
for a State to retaliate for an illegal act committed against itself by an act of a similar kind. Such retaliation
would be retorsion in the ordinary sense of the term but not in the technical meaning of the term as used by
those writers on international law so correctly distinguish between retorsion and reprisals. 8 In the case of
Naulilaa9 between Portugal and Germany, the arbitral tribunal which was established under the Treaty of
Versailles in 1928, defined reprisals as following:
Reprisals are acts of self-help by the injured State, acts in retaliation for acts contrary to international law on the part
of the offending States, which have remained unredressed after a demand for amends

Since refusal to comply with an award of an international arbitral tribunal is a breach of international
law10, therefore to resort to measures of self-help by means of reprisals for enforcement of arbitral awards has
been recognised and accepted, as the right of States in international law specially in customary international
law.11 Resorting to the use or threatened use of armed force by successful party to compel the losing party for
enforcement of an award is one of the measures of self-help in the form of retorsion or reprisals, against the
breach of international law for implementing the award. For example, in the Case of Cerruti,12 between
Colombia and Italy, Colombia refused to accept the arbitral award. Italy resorted to threatened use of force
and sent an Italian fleet to Colombia waters in 1818 and an ultimatum was sent by the Commander of the fleet
5

Article 2(4), United Nations Charter.

S.k.Verma, supra note 2, p. 358.

Oppenheim, supra note 19, at. 134.

Ibid.

Naulilaa case (Portugal v. Germany), 2 RIAA 1012 (1928). See also Hackworth, Digest of International law (Washington:
1943), p. 155.
Simpson and Fox, supra note 1, at p.259.
Ibid.
6 AJIL (1912) 965.

10
11

12

15

to the Colombian Government for enforcement of the award and claimed that according to the award the
indemnities awarded to Mr. Cerruti be paid to the Government of Italy.
Most of the writers have denied the use of forcible measures for enforcement of awards. Waldock
states that the principle of resorting to forcible self-help was gravely weakened by the fact that conversion of
forcible measures into war puts the case outside any legal principles. 13 Oppenheim also states that the
institution of "reprisals" would give occasion for abuse in case of a difference between a powerful and a weak
State.14 As Verma says, these measures (retorsion and reprisals) differ from war as follows:
1.

In retorsion and reprisals the relations of peace are maintained, but in war they may come to an end.

2.

These compulsive means are confined to certain harmful measures only, but in war any amount and
any kind of force can be used subject to humanitarian law.

3.

As soon as the other State is willing to settle the difference, the compulsive measures must cease, but
it is not so in war, which comes to an end with the defeat of one of them.15

The first step to put limitations on the doctrine of forcible self-help as a legitimate measure of reprisals
in positive international law was taken by the second Hague Peace Conference of 1907. Article 1 of the Hague
Convention of 1899 with respect to the limitation of recourse to armed force for the enforcement of arbitral
awards provides:
"The contracting powers agree not to have recourse to armed force for the recovery of contract debts claimed from
the government of a country by the government of another country as being due to its nationals. This undertaking is
however, not applicable when the debtor State refuses or neglects an offer of arbitration, or after accepting the offer,
prevents any compromise from being agreed on, or, after the arbitration fails to submit to the award".

Although, this Article and provisions of the Convention did not prohibit the use of force and, did not
resolve the problem in general, it prepared the way for its successors, the League of Nations and the United
Nations. The provisions of Articles 10, 11, 12 and 13 of Covenant of the League of Nations designed to create
a system of collective responsibility in matters relating to the use of force or the threatened use of force.
Specially, with regard to the enforcement of arbitral awards, Article 13 (4) provides:
The members of the League agree that they will carry out in full good faith any award... that may be rendered, and
that they will not resort to war against a member... in the event of any failure to carry out such an award... the Council
shall propose what steps should be taken to give effect thereto16

However, the use of force by a member of the United Nations has been prohibited expressly in Article 2
(4) of the Charter of the United Nations as follows:
All members shall refrain in their international relations from the threat or use of force against the territorial integrity
or political independence of any State, or in any manner inconsistent with the purposes of the United Nations.

Therefore, under the Charter of the United Nations, enforcement of awards by successful party by use
of force is not legal. The Charter obligates States to settle their disputes by peaceful means so as to preserve
international peace and security, and justice (Article 2, para. 3). Similarly, the Declaration of the General
Assembly on Principles of International Law concerning Friendly Relations and Co-operation among States of
13

Waldock, The Use of Force in International Law, Vol. II (1952), p. 468.

14

Oppenheim, supra note 19, at p.143.

15

S.K.Verma, supra note 2, at p.357.

16

In the Case of Central Rhodopia between Greece and Bulgaria, Greece claimed that loser party has refused to carry out the
arbitral award which had been rendered on March 29, 1933 and requested that with a view to the application of Art. 13(4) of
the Covenant, the question be placed on the agenda of the Council of the League of Nations. As soon as the League put the
matter on its agenda, Bulgaria government gave assurance that it would comply with the decision ( see, 3 RIAA, 1405).

16

24 October 1970, declares that, States have a duty to refrain from acts of reprisal involving the use of force. 17
Nevertheless, as Verma says, due to the weaknesses of the present international law without any centralised
machinery to settle international disputes, these measures continue to have their relevance in international
relations.18 In other words, so long as under international law there is no agency enforcing international
awards, reprisals remain relevant as a means of enforcing international law as a customary practice.
(iii) Regional Organisations
Enforcement of arbitral awards may be requested through a regional organisation by a successful State
in its attempt to secure such enforcement because the recalcitrant party may be more likely to respond to
opinion or pressure within a related region to which it belongs. It could make it more susceptible to
enforcement measures, because, sometimes the regional organisation provides specific provisions for
enforcement of awards. For example, Article 50 of the American Treaty on Pacific Settlement (the Pact of
Bogota, April 30, 1948) provides that if one of the contracting parties should fail to carry out the obligation
imposed upon it by an arbitral award, the other party or parties concerned shall propose a meeting of Ministers
of Foreign Affairs to agree upon the appropriate measures to ensure the fulfilment of arbitral award. Article 39
of the European Convention for the Peaceful Settlement of Disputes, 1959, provides that if one of the parties to
a dispute fails to carry out its obligations under an award of the arbitral tribunal, the other party to the dispute
may appeal to the Committee of Ministers of the Council of Europe, the Committee may make
recommendations with a view to securing compliance with the said award.

Are its decisions binding?Yes. All decisions, called "awards" are binding on all the
parties in the dispute and have to be carried out without delay. There are some postaward proceedings available to parties unhappy with the tribunal's decision, but they
are limited, particularly in inter-state disputes. Experts also say enforcement is often
the "Achilles Heel" of public international law. However, states who ignore or disregard
the PCA's ruling risk losing credibility and losing out in the so-called "court of world
opinion".

17

18

GA Res. 2625 (XXV), Oct. 24, 1970.

S.K.Verma, supra note 2, at p. 35.

17