28 October 2016
Unlike the International Court of Justice, the Permanent Court of Arbitration is not an official body under the United Nations. Photo: Internet
Unlike the International Court of Justice, the Permanent Court of Arbitration is not an official body under the United Nations. Photo: Internet

The PCA:the real deal or a toothless tiger?

Two years ago, in my article on the South China Sea arbitration case, I stressed that it was the Permanent Court of Arbitration (PCA), rather than the much more well-known International Court of Justice (ICJ), that was handling the case between the Philippines and China over their dispute.

In a sense, the PCA is often considered less prestigious than the ICJ.

Strictly speaking, the PCA isn’t an international court. Rather, it is a loosely organized intergovernmental body based in the Hague in the Netherlands specializing in international arbitration.

Unlike the ICJ, which is a permanently established court of law with the authority to adjudicate legal disputes between nations according to the international law, the PCA provides legal advice through a standing body known as the “International Bureau”.

Besides, unlike the ICJ, the PCA doesn’t have any permanent judge sitting on board.

All it has is a register of judges nominated by the 119 signatories of the international treaty that gave birth to the PCA back in 1899.

Whenever the PCA needs to hold an arbitration hearing, its secretariat will pick judges on that register and ask them to come to the Hague to chair the hearing.

Moreover, unlike the ICJ, the PCA is not an official body under the United Nations, nor is it funded by the UN.

All the costs associated with the arbitrary hearings carried out by the PCA are borne by the plaintiffs and the defendants.

Last but not least, as stipulated in the UN Charter, the rulings made by the ICJ can be enforced by the UN Security Council, whereas the decisions made by the PCA are not legally binding.

So it appears the PCA is nothing more than a toothless tiger, and the arbitration decisions it makes are completely negligible. Or is it really so?

The answer is no.

Even though the decisions made by the PCA are not legally binding, they still carry weight and are influential.

It is because, according to Manuel Indlekofer, an international law researcher with the University of Augsburg in Germany, the PCA, which dates back to the Hague International Peace Conference in 1899, is the first ever international body established with a clear mandate to provide a platform for nations to settle their disputes peacefully.

Back in those days there wasn’t any UN or League of Nations, and countries usually settled their differences by force.

The establishment of the PCA was therefore monumental as it put, properly for the first time in human history, the ideals of resolving international disputes through arbitration – not war – into actual practice on a global scale.

The PCA not only laid down for the first time an international framework for settling disputes between countries, but also introduced a lot of principles that are still governing international norms and treaties even to this day.

In the meantime, the PCA also laid the foundation for the codification and progressive development of modern international law.

And without the successful experience of the PCA, the International Permanent Court, the predecessor of today’s ICJ, might never have been founded in 1922.

Suffice it to say that the PCA is the mother of all international courts and a milestone in the establishment of the modern international order that all of us take for granted today.

This article appeared in the Hong Kong Economic Journal on July 19.

Translation by Alan Lee

[Chinese version 中文版]

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Associate professor and director of Global Studies Programme, Faculty of Social Science, at the Chinese University of Hong Kong; Lead Writer (Global) at the Hong Kong Economic Journal

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