Professional Documents
Culture Documents
The history of the Permanent Court of Arbitration started in the final year of the 19th century when
in the summer of 1899, the Tsar of Russia, Nicholas II, called the world’s leading Powers’ to a con-
ference.The agenda was the strengthening of the system for the peaceful settlement of international
disputes. This was the first major multilateral international peace conference that was not held in the
immediate aftermath of a European war, and is said to have marked the beginning of The Hague as
‘the International Capital of Peace and Justice’. 4 The sovereign Powers, meeting in The Hague at
the first International Peace Conference, adopted a Convention for the Pacific Settlement of Interna-
tional Disputes, which established a global institution for international dispute resolution: The Per-
manent Court of Arbitration. The PCA was conceived by the drafters of the 1899 Convention as a
precursor of all present-day forms of international dispute resolution, including the International
Court of Justice.
Among the aims of the Conference had been the strengthening of systems of international dispute
resolution especially international arbitration. The delegates at the Conference knew that, during the
previous 100 years, there had been a number of successful international arbitrations, starting with
the “Jay Treaty” Mixed Commissions at the end of the 18th century, the Alabama arbitration in
1871-1872 and the Institute de Droit International which had adopted a code of procedure for arbi-
tration in 1875.Throughout the 19th century, arbitration was used in a number of international dis-
putes, including for instance the Alabama arbitration between the United States of America and the
United Kingdom arising out of the US Civil War, but these had been organised on an ad hoc basis
relating to a particular claim or set of claims. This movement toward arbitration as a means of inter-
national dispute resolution was continued in 1899, the most concrete achievement of the 1899 Con-
ference was the establishment of the PCA as the first global mechanism for the settlement of dis-
putes between states.The drafting of the 1899 Convention was the first time the process had been
systematically organised through a general, multilateral convention.
The 1899 Convention was revised at the Second Hague Peace Conference in 1907, by the adoption
of a second “Convention for the Pacific Settlement of International Disputes.” Although the major-
ity of States are parties to the 1907 Convention, both Conventions remain in force since the creation
The judges or arbitrators that hear cases are called Members of the Court. Each member state may
appoint up to four "of known competency in questions of international law, of the highest moral
reputation and disposed to accept the duties of arbitrators" for a renewable 6-year term. Members of
each member state together form a "national group".7 Members may be selected in arbitration cases
in which the PCA provides support. National Groups may propose candidates for International
Court of Justice members. Since the parties prefer to have the autonomy to appoint arbitrators from
outside of a closed panel of arbitrators and judges, the article 47 of the 1907 convention authorises
the International Bureau “to place its offices and staff at the disposal of the Contracting Powers for
the use of any special Board of Arbitration.” This article has been invoked to authorise PCA in-
volvement in arbitration involving non-State parties, including the adoption of various sets of proce-
dural rules therefor and to enable parties to select whomever they wish as arbitrators.
The PCA tribunals have jurisdiction for disputes based on the PCA founding documents that is the
Conventions on Pacific Settlement of International Disputes, or based on bilateral and multilateral
treaties. Its Secretary General acts as an appointing authority for arbitration.Though the PCA was
originally established for inter state arbitration, the Hague Conventions allow considerable flexibil-
ity in the constitution of a special Board of Arbitration. 10 Pursuant to the various Optional Rules, the
following parties can agree to bring a case before the PCA; two or more states, a State and an inter-
national organisation, two or more international organisations, a state and a private party or an inter-
national organisation and a private party.
The potential subject-matter jurisdiction of PCA arbitral tribunals is unlimited. In each case how-
ever, the scope of jurisdiction is governed by the wording of the applicable arbitration agreemen-
t.The cornerstone of the jurisdiction is agreement of the parties. This agreement can be made by
way of a separate agreement covering an existing dispute or through a clause in a treaty, contract, or
other legal instrument, which is usually more general, covering any future disputes “arising under”
or “in connection with” the instrument concerned.
The PCA Rules of Procedure for Arbitrating Disputes Relating to Natural Resources and/or the En-
vironment and the Optional Rules for Conciliation of Disputes Relating to Natural Resources and/or
the Environment contain no requirement that one of the parties be a State or organisation of
States.Private parties may agree to use the administrative and other facilities of the PCA in arbitra-
tions conducted under the UNCITRAL Rules, and the PCA is contemplating adopting its own insti-
tutional version of the UNCITRAL Rules for this purpose. 11 There is no requirement that a State
agreeing to PCA dispute resolution be a party to the 1899/1907 Conventions, and accession to the
Conventions does not establish any type of compulsory jurisdiction. The various PCA Rules follow
the UNCITRAL Rules in empowering the arbitral tribunal to decide on any objections to its juris-
diction,12 and providing Dispute Settlement that, for purposes of determining jurisdiction, an arbitra-
tion agreement shall be considered separable from the instrument in which it is contained. 13 Thus,
the invalidity of the contract, agreement or instrument does not ipso facto deprive the arbitral tri-
bunal of jurisdiction.
Moreover, PCA practice, knows no distinction between contentious and advisory jurisdiction. Arbi-
tration is virtually always contentious, and can be distinguished from other forms of non-judicial
dispute resolution by the final and binding nature of the resulting arbitral award, which is the final
decision of the tribunal in the form of a written documents stating the decision of the arbitrators as
Inter-State disputes submitted to arbitration under PCA auspices have concerned such diverse mat-
ters as territorial sovereignty, the delimitation of land and maritime boundaries, environmental pro-
tection, treaty interpretation, human rights, and international humanitarian law. Arbitration between
two states takes place when two member states of the PCA decide to submit a dispute for arbitration
to a PCA Tribunal. The Tribunal consists of five arbitrators, two of which are selected by each party
to the arbitration and one of whom may be a national of the party concerned. The four arbitrators
choose the fifth and presiding arbitrator.A number of the inter-state disputes administered by the
PCA have taken place in post-conflict settings. Notably, the PCA provided support in the arbitration
between Eritrea and Ethiopia to decide multiple claims arising out of breaches of the laws applica-
ble in armed conflict that took place during the Eritrean-Ethiopian war of 1998-2000 15. The case
was submitted to arbitration pursuant to the Algiers Agreement, signed by Eritrea and Ethiopia in
December 2000, which brought the war to an end. The PCA further provided support to the bound-
ary commission that was established, also pursuant to the Algiers Agreement, to delimit and demar-
cate the boundary between Eritrea and Ethiopia. Another important inter-state case dealt by the Per-
manent Court of Arbitration is Island of Palmas Case16 of 1928 between USA and The Netherlands
it was a territorial dispute over the Island of Palmas between the Netherlands and the United
States which was heard by the Permanent Court of Arbitration. The Island was declared to be a part
of the Netherlands East Indies and is now part of Indonesia.The case is one of the most influential
precedents dealing with island territorial conflicts.
In the law of the sea, the PCA has administered the last seven arbitrations initiated under the 1982
United Nations Convention on the Law of the Sea, including a pending dispute between Mauritius
and the United Kingdom17 and one between Bangladesh and India18. A number of the PCA’s inter-
State disputes have been concerned with environmental protection, including two cases submitted
by the Netherlands: the Rhine Chlorides arbitration between the Netherlands and France 19, which
concerned the treaty framework for international efforts to reduce industrial pollution; and the Iron
Rhine arbitration between the Netherlands and Belgium20, concerning the measures of environmen-
tal protection to be taken in the reactivation of an historic railway.
In addition to inter-state disputes, the PCA also offers its services in other cases where just one of
the parties is a state or a state entity. The PCA’s founding Conventions expressly authorise the In-
ternational Bureau to place its offices and staff at the disposal of the Contracting Powers for the use
of any special Board of Arbitration.The International Bureau first provided services under this pro-
vision in a dispute between a private body and a State in the 1930s, when a private company, Radio
A unique case in this context is an intra-State dispute between the Government of Sudan and the
Sudan People’s Liberation Movement22, a boundary delimitation case between a central government
and a national liberation movement. The question submitted to arbitration in 2008 was whether the
Abyei Boundaries Commission or ABC, an earlier international boundary commission which had
been tasked with establishing the boundary of the Abyei area, had gone beyond the powers en-
trusted to it. The tribunal created in 2008 was tasked, if it found that there had been an excess of
power, with drawing the boundary afresh. This arbitration demonstrated the potential for speed of
international arbitration. The arbitration agreement was deposited by the Parties in July 2008, the fi-
nal award was rendered in July 2009. So far, this case has remained unique; however, given that
most armed conflicts these days are non-international ones, the question arises whether this mecha-
nism might be applied more often in future.
Evidently, the Permanent Court of Arbitration which remained relatively dormant period from the
Second World War to the turn of the millennium, is now experiencing renewed growth in its activ-
ity, with more cases currently pending than were submitted in the first century of its existence.
21 Radio Corporation of America v. The National Government of the Republic of China (1934) PCA-CPA 1934-01.
22 Sudan v. Sudan People’s Liberation Movement (2008) PCA-CPA 2008-07.