Permanent Court Of Arbitration Research Articles

Permanent Court of Arbitration (PCA)

Permanent Court of Arbitration (PCA)

Realpolitik in Global Governance: Understanding the Competing Realist and Cosmopolitan Narratives of the Nineteenth Century Era of International Law

Realpolitik in Global Governance: Understanding the Competing Realist and Cosmopolitan Narratives of the Nineteenth Century Era of International Law

The International Court of Justice

In this scientific paper my main focus of research is based on the composition, structure and main function of judges of the International Court of Justice according to countries and geographical regions where they come from, as according to Article 9 members of the court represent the main forms of civilization and the main system legal of the world. This means customary law, civil law and socialist law (now post-communist law). hen the task and function of international judges of law is to resolve disputes between states in accordance with international law and to give advisory opinions on international legal matters. The ICJ is the only international court that adjudicates general disputes between countries, with its decisions and opinions serving as primary sources of international law. Then, we have the creation of the first permanent institution created for the purpose of resolving international disputes was the Permanent Court of Arbitration (PCA), which included all the major world powers as well as some smaller states, and resulted in the first multilateral treaties dealing with the conduct of war. Among them was the Convention for the Settlement of International Disputes in the Pacific, which defined the institutional and procedural framework for arbitration proceedings to be conducted in The Hague, the Netherlands. Although the proceedings would be supported by a permanent bureau - whose functions would be equivalent to that of a secretariat or court register - arbitrators would be appointed by opposing states from a larger group provided by each member of the convention.

Digital Evidence in Disputes Involving States

The use of digital evidence increases concurrently with increased digitalization of the larger world and of justice processes. This essay aims to address the use of digital evidence in interstate disputes and other disputes involving states. It focuses on the case law of two international arbitral bodies—the Permanent Court of Arbitration (PCA) and the International Centre for Settlement of Investment Disputes (ICSID)—and of the International Court of Justice (ICJ). The analysis discloses three main concerns when dealing with digital evidence: authorship, authenticity, and chain of custody. We propose that courts create permanent and ad hoc digital forensic expert committees to draft guidelines and perform a preliminary admissibility evaluation of digital evidence.

ASEAN and the Major Powers in the South China Sea: the Role of Law, Diplomacy, and Deterrence in Moderating Sovereignty Claims

Abstract This article focuses on the rising strategic significance of the South China Sea for the Association of Southeast Asian Nations (ASEAN) and the major powers. It traces the origins of the South China Sea (SCS) dispute, and the claimants that are directly involved (China, Vietnam, Philippines, Malaysia, and Brunei). It then examines why balance of power considerations have influenced and continue to influence the role of regional states as well as the major external powers (China, United States, India, and Japan, together with other interested middle powers such as Australia and Canada). It argues that the SCS is an international maritime regime (global commons), and therefore subject to the principles and practice of International Law, specifically United Nations Convention on the Law of the Sea (UNCLOS). Any attempt at nationalisation of the SCS will be rejected under international law, as evidenced by the 2016 decision of the Permanent Court of Arbitration (PCA), with respect to the submission in 2013 by the Philippines on its dispute with China, for compulsory arbitration by the The Hague Court. It notes the lack of unity in ASEAN over how to deal with China’s assertive conduct in the SCS. It suggests that only a dynamic balance of power approach, which includes external power engagement with regional interests, will create the necessary space for diplomacy and dialogue by upholding the primacy of the rule of law, freedom of the open seas, and the legitimate rights and interests of all claimant states. It concludes that law, politics, diplomacy, and deterrence are interactive variables requiring strategic management to promote shared interests, stability and security in the South China Sea.

6. Permanent Court of Arbitration (PCA)

6. Permanent Court of Arbitration (PCA)

Equitable representation on international benches and the appointment of tribunal members in investor–State dispute settlement: a historical perspective

Abstract The lack of diversity in the appointment of tribunal members in investment arbitration has long been subject to criticism. This article analyses the design of adjudicator appointment mechanisms and challenges the mainstream view that investment arbitration is modelled after the structures and procedures of commercial arbitration. Instead, drafters of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention) largely drew inspiration from the Permanent Court of Arbitration and the International Court of Justice. Following this institutional pedigree, the development of the equitable representation requirement is linked to the growing appreciation of the public aspects of the international judicial function. Nevertheless, drafters adopted Article 14(2) of the ICSID Convention mainly to facilitate the performance of the private function of dispute resolution. Through the historical lens, controversies surrounding different approaches for addressing diversity concerns in the ongoing investor–State dispute settlement reform are essentially surface products of deeper disagreements on the private and public aspects of the judicial function.

Global Regulatory Standards in Environmental and Health Disputes

In a time of rising environmental and health disputes, Global Regulatory Standards in Environmental and Health Disputes (OUP 2021), authored by Caroline E Foster, is one of the first books to attempt to comprehensively condense the legal principles and standards that have been applied by courts and tribunals thus far. It does so by focusing on jurisprudence from the International Court of Justice, law of the sea dispute settlement, Permanent Court of Arbitration, World Trade Organisation (WTO), and investment treaty arbitration. Regulatory coherence, due regard and due diligence are identified by the author as the three main principles relevant to environmental and health disputes. Within this structure, the book provides a useful analysis of the principles of reasonableness, due regard, due diligence, necessity testing and proportionality. The author suggests that considerable similarity between emerging regulatory standards and these standards could be predicted in many other fields, including for example, human rights law. European Union (EU) law is also a potentially rich source of environmental and health regulatory standards.

Going Green by Adopting and Adapting Arbitration for Environment Related Disputes

Despite the fact that the law has evolved in addressing the array of concerns existing by often immediate and irreversible damage to the soul environment, the working of the law has been plagued by an unsuccessful dispute settlement mechanism with little detailing on its administration. International environmental treaties are gradually making more space for alternative dispute resolution (ADR) methods for dispute settlement. The Permanent Court of Arbitration Environment Arbitration Rules, 2001 are a set of rules with a little novel features addressing concerns which are exclusive for environmental disputes – the role of the nonstate actors and multi-party disputes. The rules are formed in a manner that would make possible for any group of parties to dispute state, NGOs, multinational corporations and even individuals. The policy is also formulated to tackle multi-party disputes. Another important characteristic of these rules are that they also addresses the cost aspect of international dispute settlement process - member states have access to the environment assistance fund. Permanent Court of Arbitration (PCA) and the environment rules fill the place of forum for environmental disputes with expertise. The paper makes no endeavor to state that there is nonexistence of normative structure with reference to dispute resolution in trans-boundary environmental disputes. Rather it aims to demonstrate the normative insufficiency in the methodology adopted to address the content of the dispute resolution mechanisms and present ADR methods as a successful methodology for resolution of environmental disputes. It starts with a concise discussion on the characterization of an environmental dispute and the difficulty in the present legal regime. This is followed by a short overview of the dispute settlement structure in international law. It then discusses the mechanism of conciliation, mandatory and optional, exemplified in the course of a few international environmental instruments. Further there is a dialogue on the Permanent Court of Arbitration Optional Rules for Conciliation in Environmental Disputes, 2001 (Hereinafter rules, 2001). The next part discusses the instrument of arbitration, mandatory and optional, as exemplified through state practice in a few arbitrations like the Mox Plant Arbitration, and the International Tribunal for the Law of the Sea (ITLOS) arbitrations. Additionally there is a conversation on the rules, 2001 and how they could be of importance by customizing them for disputes like the transboundary freshwater disputes. The paper concludes with an assessment of the rules.

THE SOUTH CHINA SEA'S NINE DASH LINE: KEY DISPUTES AND CHINA’S HISTORICAL RIGHTS CLAIMS

On the official sovereignty map of China, there is a u-shaped line, which covers an area of about 2.1 million square kilometers in the South China Sea（SCS）region. The Philippines, Vietnam, Malaysia, and other interested countries have raised many questions about the nine-dash line in recent years. The article has studied such materials as the official statement of China, the treaties and conventions signed by China, and the arbitration award obtained from the Philippines' lawsuit to the Permanent Court of Arbitration（PCA） in 2013 and has made an in-depth study of the legal nature, types of rights and specific rights of the nine-dash line. The study concluded that, first, China's delimitation of the nine-dash line is in line with international customary law and international practice, and this action does not violate the territorial sea regime of the United Nations Convention on the Law of the Sea（UNCLOS）; Second, the nine-dash line in the SCS is not the "national boundary", but it is China's "island ownership line", and also the dividing line between China's maritime rights in the SCS and other countries; Third, the historical rights that China strongly advocates include but are not limited to fishing rights, navigation rights, and oil and gas resources rights; Fourth, the international community should attach importance to and respect China's historical rights view of the nine-dash line sea area. Any ruling that does not respect China's historical rights will not be accepted by China

6. Permanent Court of Arbitration (PCA)

6. Permanent Court of Arbitration (PCA)

Implementing the Interpretation of Article 121 Paragraph (3) of the UNCLOS Conducted by The Permanent Court of Arbitration towards Sekatung Island as a Maritime Feature in Indonesia-Vietnam’s Maritime Delimitation Negotiation

Indonesia’s government is conducting a maritime delimitation negotiation with Vietnam since 2021 discussing the delimitation of the EEZ. According to a method of delimitation, determining the status of a maritime feature is one of many vital points to be discussed during a delimitation negotiation. Sekatung Island, a small island belongs to Indonesia, which located between Indonesia and Vietnam has a vital part to determine the width of Indonesia’s EEZ. Article 121 paragraph (3) of the UNCLOS is the main legal basis to determine the legal status of Sekatung Island. Aforementioned Article has been interpreted by the Permanent Court of Arbitration in the South China Sea Arbitral Award. In summary, the PCA declared maritime features must have the natural capacity to sustain human habitation and economic life of their own, based on historic evidences, in order to determine such features as fully entitled island with up to 200 nautical miles of EEZ and continental shelf. The purpose of this article is to give a point of view for Indonesia’s government regarding the deficiency of such interpretation by the PCA which may leads to disadvantaging Indonesia’s position during delimitation negotiation, if in any case the government would implement such interpretation to determine the legal status of Sekatung Island.
 
 Keywords: South China Sea Arbitral Award, Rocks, UNCLOS, maritime delimitation

The politics of grand strategy in an emerging state: a case study on Philippine diplomacy toward China

ABSTRACT Some observers expected a drastic change in the Philippines’ diplomacy toward China when Rodrigo Duterte said goodbye to the United States in 2016. However, after six years, the Philippines has remained an allied partner of the United States. The Philippines’ defense establishment bolstered its maritime domain awareness capacity thanks to financial and technical support from the United States. Department of Foreign Affairs (DFA) maintained the award from the Permanent Court of Arbitration (PCA) favoring the Philippines over China. This paper sheds light on the Philippines’ policymaking process by framing the politics of grand strategy in an emerging state. The grand strategy is an intellectual architecture to clarify the general direction of foreign policy shaped by multiple state actors who are not limited by the foreign affairs office. Neither asymmetrical power relations nor presidential power can dominate the direction of the Philippines’ diplomacy. The president, the DFA, and the defense establishment have developed institutional foundations to craft particular policies. Once they designed the grand strategy in the 1990s, successive policymakers did not remove it but rather incrementally changed it, especially in the 2010s, when they faced a series of assertive actions from China. In an emerging state with limited state capacity, Filipino policymakers do not always coordinate well with each other but still maintain a certain level of autonomy to create particular policies. Against the dominant framework of the weak state, this paper argues that Filipino policymakers demonstrate the state’s capacity to achieve their policy goals, even with limitations.

Classification of Maritime Disputes and Modern Legal Means of their Resolution

A review of scientific articles published over the past 15 years in leading foreign scientific journals on international law demonstrates the gradual improvement of legal means for the settlement of maritime disputes between the states.Aim. Identification of the features for application of the law of the sea norms targeted on the resolution of maritime disputes that develop in the modern international system.Tasks. Development of the classification of maritime disputes, analysis of the jurisdiction of the judicial authorities competent to resolve maritime disputes, characterization of the provisions of international agreements and customs of the law of the sea in the resolution of maritime disputes by the International Court of Justice of the United Nations (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and the Permanent Court of Arbitration in The Hague (PCA).Methods. Discourse analysis of the most authoritative publications on the issue of resolving maritime disputes, a formal legal analysis of the norms and customs of maritime law, as well as a comparative legal study of judicial and arbitration practice in resolving interstate maritime disputes. Law enforcement practice on maritime disputes allows to characterize the subject of modern interstate maritime disputes; critically assess the fairness of decisions of international courts; to analyze the problems of enforceability of judicial and arbitral awards in the framework of the procedures for the settlement of maritime disputes provided for in the 1982 UN Convention on the Law of the Sea.Results. Reasonable decisions of the International Court of Justice, the International Tribunal for the Law of the Sea and the Permanent Court of Arbitration in The Hague are usually implemented by the states parties to the 1982 UN Convention on the Law of the Sea. Protection of the marine environment as well as prompt release of ships and crews from arrest have become a modern legal reality due to the effectiveness of the legal mechanism for resolving interstate maritime disputes. Territorial maritime disputes cause significant difficulties at all stages of their resolution, which is due to their political nature and the efforts of states to protect their national interests.Conclusion. The resolution of maritime territorial disputes requires more flexibility from the parties, an international agreement between the parties to the dispute on the procedure for its consideration, as well as the use of conciliation procedures to work out a compromise solution to the dispute.

The Chagos Archipelago Case and the Limits of International Law (English) L’Affaire de l’Archipel des Chagos et Les Limites du Droit International

The legal status of the Chagos archipelago is complex because it is of a hybrid nature: it is under the sovereignty of the United Kingdom which grants rights at sea to Mauritius, and on land to the United States (Diego Garcia). This case is also important because it is not easy to have two divergent preoccupations: the protection of the environment in the face of the rights of Chagossians and environmental sustainability in the face of equity and human rights. This case was first submitted to the Permanent Court of Arbitration (PCA), before the UN General Assembly had asked the International Court of Justice (ICJ) about the claims that the PCA declared it lacked jurisdiction to answer.

The Politics of South China Sea Warfare: The Multilateral Democratic Diplomacy Recourse of Mini-ASEAN Youth for Regional Security

The 1982 United Nations Convention on the Law of the Sea (UNCLOS 1982) adheres that a rule-based maritime order is a rudimentary concept of international law. The 2016 award by the Permanent Court of Arbitration (PCA) on the South China Sea (SCS) has led to the continuous Chinese psychological maritime warfare in the Philippine Exclusive Economic Zone (EEZ). The foreign policy of the President of the Republic of the Philippines (RP) has led to contradicting statements of Philippine government officials in protecting the West Philippine Sea (WPS) from the People’s Republic of China (PRC). With the 1992 ASEAN Declaration, the regional bloc may have its jurisdiction over the case; however, their principle of non-interference prevents any mechanism to settle the maritime dispute. While both juridical and political aspects were considered in resolving the Timor Sea case through conciliation, Article 298 of UNCLOS 1982 becomes the core legal collision in the SCS. Despite experts, organisations, and institutions proposing democratic initiatives through digital activism, securing and defending the WPS, however, the broader Indo-Pacific requires the democratic diplomacy recourse of a mini-ASEAN youth to coordinate with the youth from the Quad and the G7 countries to multilaterally raise the concern at the United Nations.

INSIGHTS FOR CENTRAL ASIA FROM THE PRINCIPLES AND DISPUTES OF INTERNATIONAL WATER LAW

This article analyzes legal aspects of the Central Asian water dispute with reference to international water law principles. In other words, it examines the existing principles of international water law, and identifies those which dominate in setting international discourses. Moreover, this study provides examples of water disputes around the world, such as the Nile River, the Mekong River, the Indus River cases, in which several non-Central Asian states, facing similar conflicts, such as India and Pakistan, Egypt and Sudan, South-East Asian nations are involved. In particular, it is emphasizes that even countries, which has more problematic relations rather than Central Asian republics, could eventually achieve a mutual legal settlement of water-related tensions. Finally, it offers solutions to the water disputes for Central Asian countries in the light of the principles of international water law laid down by the Permanent Court of Arbitration in the 2012 Kishenganga Case.

6. Permanent Court of Arbitration (PCA)

The PCA is presently acting as registry in seven inter-state proceedings, 101 investor–state arbitrations, and fifty-two cases under contracts or other agreements involving a state or other public entity (<https://pca-cpa.org/en/cases/>). During the past year, some important environmental and natural resources issues were raised in several cases before PCA-facilitated arbitration panels. On 26 September 2019, Nord Stream 2 AG commenced arbitration proceedings against the European Union (EU) pursuant to Article 3 of the United Nations Commission on International Trade Law (UNCITRAL) Rules and Article 26(4)(b) of the Energy Charter Treaty in relation to an investment in the oil and gas sector (<https://www.pca-cpa.org/en/cases/239/>). This pending case comprises issues concerning oil and gas. Ricardo Ramírez Hernández (Presiding Arbitrator), Philippe Sands QC, and Justice David Unterhalter SC were appointed as arbitrators (<https://www.pca-cpa.org/en/cases/239/>). Nord Stream 2 AG is a company incorporated in Zug, Switzerland, that was engaged in planning and construction of a pipeline in order to transport natural gas from Russia to Germany via the Baltic Sea. Nord Stream 2 was both the operator and owner of the pipeline. The positive impact of the pipeline on the market and economy of the EU was recognized.

6. Permanent Court of Arbitration (PCA)

6. Permanent Court of Arbitration (PCA)

Correction to: The Nomination of International Judges by ‘the Enlightened Few’: A Comment on the Royal Decree of 23 January 2020 Concerning the Establishment of a Dutch National Group at the Permanent Court of Arbitration

Correction to: The Nomination of International Judges by ‘the Enlightened Few’: A Comment on the Royal Decree of 23 January 2020 Concerning the Establishment of a Dutch National Group at the Permanent Court of Arbitration