The Philippines v. China arbitration was based on both countries being parties to the United Nations Convention on the Law of the Sea (UNCLOS), and thus agreeing to the rules for compulsory dispute settlement.
(Note: China claims that the tribunal did not have jurisdiction to decide the specific disputes submitted by the Philippines and refused to accept or participate in the arbitration. But that’s a different issue , and I’ll try to just answer the actual question.)
From the International Tribunal for the Law of the Sea (ITLOS) website:
- ¿China está ayudando secretamente a Pakistán?
- ¿Qué pasaría si China permitiera toda la declaración de derechos que tienen los estadounidenses? ¿Se derrumbaría?
- ¿Cómo previene China el terrorismo de sus países vecinos?
- ¿Cuál es la posición de Australia en el Mar del Sur de China? ¿Cómo se vería afectado su vínculo entre China / países asiáticos?
- Si Malasia y China van a la guerra, ¿los chinos de Malasia defenderán a su país?
Part XV of the Convention lays down a comprehensive system for the settlement of disputes that might arise with respect to the interpretation and application of the Convention. It requires States Parties to settle their disputes concerning the interpretation or application of the Convention by peaceful means indicated in the Charter of the United Nations. However, if parties to a dispute fail to reach a settlement by peaceful means of their own choice, they are obliged to resort to the compulsory dispute settlement procedures entailing binding decisions, subject to limitations and exceptions contained in the Convention.
The mechanism established by the Convention provides for four alternative means for the settlement of disputes : the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII to the Convention, and a special arbitral tribunal constituted in accordance with Annex VIII to the Convention.
A State Party is free to choose one or more of these means by a written declaration to be made under article 287 of the Convention and deposited with the Secretary-General of the United Nations (declarations made by States Parties under article 287).
If the parties to a dispute have not accepted the same settlement procedure, the dispute may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree.
Link to UNCLOS Part XV.
Article 286 allows any party to a dispute to submit that dispute to a court or tribunal for compulsory dispute settlement (with certain limitations/exceptions), and then article 287 allows states to choose one or more out of four alternatives as their preferred procedure(s). The International Tribunal for the Law of the Sea (ITLOS) is one option, as per article 287(1)(a). If a state does not actively choose one or more of the available options, article 287 paragraph 3 says it is “deemed to have accepted arbitration in accordance with Annex VII”, option (c).
In this case, neither China nor the Philippines had picked one or more of the four options as their preferred settlement procedure. See the United Nations website for a list of the procedures chosen by various states: Choice of procedure. Under “Declarations under article 287”, China’s entry says “No choice under article 287 made”. This means that China chose option (c).
The Philippines had to submit the disputes to “an arbitral tribunal constituted in accordance with Annex VII”.
So, the partial answer to the question is that due to China’s choice of procedure, the International Tribunal for the Law of the Sea (ITLOS) was not available as an option.
But, what does the Permanent Court of Arbitration (PCA) have to do with the case?
UNCLOS Annex VII has the bare-bones rules for the arbitration. The rules leave many of the details up to the arbitration tribunal. A case like this requires a lot of administration, and that’s where the PCA comes in.
From the PCA website:
The PCA regularly provides administrative services in support of parties and arbitrators conducting arbitral proceedings under the PCA’s auspices, serving as the official channel of communications and ensuring safe custody of documents. The PCA can also provide such services as financial administration, logistical and technical support for meetings and hearings, travel arrangements, and general secretarial and linguistic support. In addition, a staff member of the International Bureau may be appointed as registrar or administrative secretary for a case and carry out administrative tasks at the direction of the arbitral tribunal.
According to the PCA website, it has “administered all but one of the UNCLOS Annex VII arbitrations to date”. (Bangladesh v. India is a recent high profile example.)
The Philippines v. China Annex VII tribunal chose the PCA to administer the case. From page 12 of the final award:
On 12 July 2013, the Tribunal issued Administrative Directive No. 1, pursuant to which the Tribunal appointed the Permanent Court of Arbitration as Registry and set in place arrangements for a deposit to cover fees and expenses. On 15 July 2013, the Secretary-General of the PCA informed the Tribunal and the Parties that Ms. Judith Levine, PCA Senior Legal Counsel, had been appointed to serve as Registrar.
So, the Philippines did not “take the case to the PCA”. The PCA was involved due to a decision made by the tribunal. This is common for UNCLOS Annex VII arbitration.