【Patron分享】英國通過常設仲裁法院控告中國的國際法基礎 (Patreon)

不久前，分享過中英聯合聲明和國際法的關連，談及國際常設仲裁法院（PCA）的角色，這位國際法背景的網友有詳細觀點分享如下：

Hi Simon and your team! I have watched your video on how international law can respond to a breach of the Sino-British Declaration.

At 16:25, you suggested that the consent of PRC is not necessary for the UK to submit the issue to PCA.  I believe it is wrong to conclude that consent is not necessarily to launch an arbitration at the PCA.  The jurisdiction of the PCA for the South China Sea arbitration was founded on Art 286 of the 1982 United Nations Convention on the Law of the Sea, to which both Philippines and PRC are parties to. The dispute on jurisdiction for the South China Sea arbitration concerns whether the dispute is one that concerns "the interpretation or application of this Convention". Another dispute is whether it is a dispute related to territorial dispute (which cannot be adjudicated by the tribun

However, ultimately, the jurisdiction of the PCA comes from the fact that PRC is a party to the Convention, and by ratifying the Convention, the PRC consented to that arbitration.In the Hong Kong context, there is no dispute resolution mechanism in the Sino-British Joint Declaration. Therefore, it is difficult to see on what basis can the UK submit a matter concerning the situation of Hong Kong to the PCA, unless PRC expressly consents to it.Therefore, I believe Advisory Opinion is probably the only avenue where the question of Hong Kong can be put to an international tribunal.

當時曾簡單回應如下：

Thanks for your note. Will have a long piece tomorrow on that. Technically PCA also accepts commercial arbitration. Regarding consent, technically it doesn't require China's consent as it can be coming from 3rd party, say, a HKer who wishes to seek PCA's advice on whether UK's BNO offer violates SBJD, and PCA's ruling would be about the entire effectiveness of SBJD.

網友進一步跟進：

Thank you for your reply - I am very glad that the channel is discussing international law and making it more relevant to the present situation in Hong Kong.  However, I remain unconvinced.

(1) By its nature, PCA is simply an administrator of arbitrations similar to HKIAC/ CIETAC. The only difference is that it only administers arbitrations that involve states/ inter-governmental organizations (as one of the parties). I agree that becoz of its status in the world, awards rendered by the PCA is capable of changing the rhetoric (or opinio juris) in international law (for example, I see your point on the characterization Taiping Island in the South China Sea arbitration) . Nonetheless, I believe if all we are doing is to change the opinio juris in international law, I believe we don't need to go all the way to PCA to do that.

(2) We would need a cause of action against a state. You suggest as an example that a HKer can ask the PCA to adjudicate on whether the BNO offer is valid (I presume it would be an arbitration against the UK).

However, I believe: (1) the UK must consent to this "arbitration" (I doubt whether they would); (2) does the HKer has a standing in this arbitration? How is the HKer harmed in a legally sense?; (3) if the goal of the arbitration is to ask the PCA to rule on the effectiveness of SBJD, under your fictional arbitration, the UK would have to play along (otherwise it would not even be a disputed issue and the tribunal can safely decide they are not ruling on that matter). In any case, this "arbitration" would be entirely fictitious and I doubt any state/  tribunal would accept that as a matter for arbitration.

關於這兩點，有以下簡單回應：

Point 1 is always valid and not valid as any arbitration is deemed to have weak legal effect and always had replacement. But a PCA judgement will be highly in the sense that it is a recognised court and it involves state party. As mentioned If we make it as a pure business manner (ie similar to Private International Law), the centre in HK is always a convenient thing to do.

For point 2, it is based on a lot of assumptions and lots of calculation. No one could give 100% prediction, as in writing the case the route could be illegal decolonisation, irresponsible BNO policy whatsoever.  Whether a court will accept that it depends on both the legal issues and politics. But if he just said PCA is just administered the things, then he/she should not doubt the acceptance as any arbitration, if both consent, could ask PCA to do the task as a contracted work   Indeed the SBJD part, if really drill the international law, would compare the case to unilateral declaration of non nuclear test of France in Southern Pacific That is the real issue to me indeed As unilateral declaration could have legal effect The point is how to make the case and to which court in what w

網友最後補充：

On the last point on the legal effect of SBJD, now that you mention it, I agree that it should has legal effect in the ofrm of unilateral declaration. I uess you are referring to the 1974 ICJ decision in Nuclear Tests (Australia v France). I recall there is another famous case on this point Armed Activities (New Application) (DRC v Rwanda) (2002).

Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations 2006 - I guess this guide produced by the International Law Commission is a helpful guide on that pointOn point 1, my ultimate point is what's the purpose of initiating a case on Hong Kong at the international level.

If the aim is solely to create rhetoric (thereby changing the opinio juris)/ get a declaration that the PRC has breached the SBJD in international law (in order to pressure Beijing), I guess PCA might not be the best forum for that. FIrst we have to go through all the hurdles suggested in point 2. Second, PCA's award afterall only represents the view of the arbitrators only (however imminent they are). I think another more way to achieve that aim would be to launch proceedings in national court with an ancillary issue that would require the court to adjudicate on the validity/ effectiveness of SJBD. I haven't been able to thought of a credible cause of action. But I think national courts have equal if not more power in changing the dynamic of international law (e.g. Canadian Supreme Court's decision on Quebec's right of self-determination is very influential in international law).

On point 2, yes party autonomy is one of the most important pillars for arbitration. But I really doubt whether we should abuse the international law system by arguing a fictitious case before the PCA (i.e. a white glove arranged by the UK suing against UK). I believe no country who treats the rule of law seriously should abuse the legal system in such a way.

這類案例幾乎從未在PCA出現，所以一切討論，都是建基於條文，現實情況會如何，沒有人能說準。希望這類討論能拋磚引玉，讓有心人繼續為香港思考。