The Permanent Court of Arbitration (PCA) holds significant recognition among Filipinos due to its involvement in the South China Sea dispute, which the Philippines emerged victorious in 2016. However, it is essential to understand that the PCA did not render the decision itself, referred to as the “Arbitral Award.” Instead, an arbitral tribunal constituted under Annex VII of the United Nations (UN) Convention on the Law of the Sea delivered the decision, with the PCA serving as the registry.
It’s important to note that although the PCA played a vital role in the South China Sea arbitration, it was not established as a UN court. The PCA predates the establishment of the UN court and its primary judicial organ, the International Court of Justice (ICJ). While the ICJ has more recognition than the PCA, both institutions hold equal importance. Interestingly, there have been more cases involving the Philippines at the PCA compared to the ICJ. Apart from the country’s intervention in the Pulau Ligitan-Pulau Sipadan case between Malaysia and Indonesia in 2002, where Manila acted in the interest of North Borneo (Sabah), no other cases have been filed by or against the Philippines before the ICJ. In contrast, there have been several investor-state disputes related to the Philippines at the PCA, including the South China Sea arbitration. These cases are managed by the Office of the Solicitor General, but their details are not publicized due to the standard confidentiality in arbitration.
Situated alongside the ICJ at the Peace Palace in The Hague, Netherlands, the PCA operates as an intergovernmental organization offering a range of dispute resolution services to the international community. While the ICJ concentrates on judicial settlement of disputes, the PCA provides services such as inquiry, mediation, conciliation, and arbitration. Together, these institutions cover all the means recommended in Article 33 of the UN Charter for the peaceful settlement of disputes. In 2005, then UN Secretary-General Kofi Annan aptly described them as “complementary institutions.”
Despite its name, the PCA functions as a mechanism for establishing ad hoc arbitral tribunals or commissions to hear and resolve disputes, rather than being a court itself. Over time, the PCA has expanded its scope and now offers administrative support in various arbitrations involving combinations of states, state entities, international organizations, and private parties, including commercial and investment disputes. Among the three parts of the PCA’s structure, a panel of arbitrators, also known as members of the court, is appointed by the Philippines. Notably, 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 are the Philippine-appointed members.
The Philippines joined the PCA relatively recently, becoming a member in 2010. I had the privilege of being involved in the country’s accession to the PCA’s constitutive charter, The Hague Convention for the Pacific Settlement of International Disputes, during my tenure as assistant secretary for treaties and legal affairs of the Department of Foreign Affairs. At that time, we had no idea that the PCA would later serve as the registry for the South China Sea arbitration. It feels like events have come full circle as I was assigned to The Hague in early 2021 and subsequently elected as the acting president of the PCA Administrative Council for 2023-2024, becoming the second non-Dutch individual to hold this position.
Many wonder whether the PCA Administrative Council hears and decides cases. The answer is no, but it does provide general guidance and direction to the PCA’s work, alongside supervising the administration, budget, and expenditure of the organization, in collaboration with the secretary general. It is the arbitral tribunal chosen by the disputing parties that hears and decides on the cases.
In our complex and ever-changing world, the available means for peaceful dispute settlement are often underutilized, despite being indispensable. Looking at some of the cases currently before the PCA, such as those involving 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 evident that the PCA will play an increasingly critical role in the international legal order in the future. As I emphasized during my speech at the UN’s New York headquarters on June 26, 2023, during a briefing on the PCA’s ongoing work, “In an era where international peace and security face significant challenges, the work of the PCA assumes even greater significance. To the surprise of its founders 124 years ago, the PCA has not only endured but also adapted to the evolving needs of the international community. It has thrived and experienced remarkable growth, akin to an experienced individual who rediscovers their youthful vigor.” We eagerly anticipate the meaningful celebration of the PCA’s 125th anniversary in 2024.
J. Eduardo Malaya serves as the Philippine ambassador to the Netherlands, the editor of books such as “Philippine Treaties in Force 2020” and “Frontlines of Diplomacy: Conversations with Philippine Ambassadors,” and currently holds the position of acting president of the PCA Administrative Council for 2023-2024.
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