procedural issues arising from china s non … · 1. procedure in international dispute resolution...

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PROCEDURAL ISSUES ARISING FROM CHINA’S

NON-PARTICIPATION

Lucy Reed, Director, CIL

Panel 6: 6 January 2017


OUTLINE

1.  Procedure in International Dispute Resolution 2.  Procedure in the South China Sea Arbitration 3.  Treatment of China’s Non-Participation 4.  Practice of International Courts and Tribunals

on Non-Participating States

PROCEDURAL ISSUES ARISING FROM CHINA’S NON-PARTICIPATION


PROCEDURE IN INTERNATIONAL DISPUTE RESOLUTION

•  Apart from the substantive outcome of the Award, China has critiqued the procedure of the South China Sea Arbitration.

•  Statement of the MFA of the People’s Republic of China, 12 July 2016

–  “… the conduct of the Arbitral Tribunal and its award seriously contravenes the general practice of international arbitration, completely deviates from the object and purpose of UNCLOS to promote peaceful settlement of disputes, substantially impairs the integrity and authority of UNCLOS, gravely infringes upon China's legitimate rights as a sovereign state and state party to UNCLOS, and are unjust and unlawful.”



PROCEDURE IN INTERNATIONAL DISPUTE RESOLUTION •  Procedural legitimacy in international dispute resolution rests on due

process: (1) equal treatment of the parties (2) a full opportunity to be heard, and (3) reasonable judicial economy.

•  A “serious departure from a fundamental rule of procedure” is a ground for annulment of an arbitral award under general international law and certain treaty regimes.



PROCEDURE IN THE SOUTH CHINA SEA ARBITRATION

•  UNCLOS Annex VII of (Arbitration), Article 5 (Procedure):

“Unless the parties to the dispute otherwise agree, the arbitral tribunal shall determine its own procedure, assuring to each party a full opportunity to be heard and to present its case.”



PROCEDURE IN THE SOUTH CHINA SEA ARBITRATION

•  Tribunal Rules of Procedure (27 August 2013), Article 10:

“… Tribunal may conduct the arbitration in such manner as it considers appropriate provided that the Parties are treated with equality and that at any stage of the proceedings, each Party is given a full opportunity to be heard and present its case. … The Arbitral Tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient procedure for resolving the Parties’ dispute.”


TREATMENT OF CHINA’S NON-PARTICIPATION

•  The rules:

–  UNCLOS Annex VII, Article 9 / Tribunal Rules of Procedure, Article 25 (1), (similar to Article 53 of ICJ Statute):

“Absence of a Party or failure of a Party to defend its case shall not constitute a bar to the proceedings. Before making its award, the Arbitral Tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.”




–  Rules of Procedure, Article 25 (2):

“… Tribunal shall invite written arguments from the appearing Party on, or pose questions regarding, specific issues which the Arbitral Tribunal considers have not been canvassed or have been inadequately canvassed in the pleadings submitted by the appearing Party. The appearing Party shall make a supplemental written submission in relation to the matters identified by the Arbitral Tribunal within three months of the Arbitral Tribunal’s Jurisdiction.”



•  China did not appear or participate.

•  The Tribunal in the Final Award explained the steps it took to ensure

(1) procedural fairness to both parties

(2) that it had jurisdiction, and

(3) that the claim is well-founded in fact and law as required by Article 9 of Annex VII.




•  The Tribunal took steps to ensure procedural fairness to China:

–  All communications & materials including transcripts delivered to China

–  China granted equal time to respond to pleadings and questions from Tribunal

–  China invited to comment on proposed candidates and terms of reference for independent experts appointed by the Tribunal

–  PCA Registry staff made available to Chinese embassy personnel to answer informal questions of an administrative or procedural nature

–  China invited to participate in proceedings at any stage, however late.


•  The Tribunal took steps to ensure that it had jurisdiction over the Philippines’ claims:

–  Treated China’s Position Paper of 7 December 2014 as a Plea on Jurisdiction, leading to bifurcation and preliminary hearing on jurisdiction

–  Discerned China’s position on the issues raised by the Philippines’ Submissions by consulting communications from China’s officials, statements of those associated with the Government of China

–  Requested answers to 26 Questions pertaining to Jurisdiction and Merits on issues it felt were not canvassed or inadequately canvassed by the Philippines, prompting the Supplemental Written Submission of the Philippines





•  Tribunal took steps to ensure that the Philippines’ claims were well-founded in fact and law:

–  Noted that, while Article 9 of Annex VII does not change the burden of proof or raise or lower the standard of proof, it led the Tribunal to take steps to test the Philippines’ evidence and to augment the record by seeking additional evidence, expert input and submissions from the Philippines

–  In its Request for Further Submissions on 26 Questions, requested further information on features not included in the Philippines’ submission




–  Appointed independent experts to give views on (1) geographic and hydrographic information on features, (2) impact of Chinese construction activities and (3) manoeuvring of Chinese vessels

–  Considered materials from Taiwan on the status of certain features

–  Undertook independent research to ascertain the original status of features by obtaining hydrographic survey work by UK and Japanese Navy, as well as French records


PRACTICE OF INTERNATIONAL COURTS AND TRIBUNALS ON NON-PARTICIPATION

•  Article 53 of ICJ Statute:

–  Wherever one of the parties does not appear before the Court, or fails to defend its case, the other Party may call upon the Court to decide in favour of its claim.

–  The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well-founded in fact and law.




Examples of Non-Participation before the ICJ (both partial and full non-participation) Year Case Procedure Country

1949 Corfu Channel Case (UK v. Albania) Assessment of Compensation

Albania

1951 Anglo-Iranian Oil Co (UK v. Iran) Interim Protection Iran 1952 The Nottebohm Case (Liechtenstein v.

Guatemala)* Jurisdiction Guatemala

1972 Fisheries Jurisdiction (UK v. Iceland) Jurisdiction & Merits Iceland 1972 Fisheries Jurisdiction (Germany v.

Iceland)

Jurisdiction & Merits

Iceland

1973 Nuclear Test Cases (Australia v. France)*

Jurisdiction France

1973 Nuclear Test Cases (New Zealand v. France)*

Jurisdiction France

* No express reference was made to Article 53



Examples of Non-Participation before the ICJ Year Case Procedure Country 1973 The Trial of Pakistani Prisoners of War

(Pakistan v. India) Interim Protection India

1976 The Aegean Sea Continental Shelf (Greece v. Turkey)

Jurisdiction Turkey

1979 US Diplomatic and Consular Staff in Tehran (USA v. Iran)

Jurisdiction & Merits Iran

1984 Military & Paramilitary Activities in and Against Nicaragua (Nicaragua v. USA)

Merits USA

1994 Maritime Delimitation and Territorial Questions Case (Qatar v. Bahrain)*

Jurisdiction Bahrain

*No express reference was made to Article 53



•  Based on ICJ jurisprudence, the following principles on the obligations of an international court/tribunal in cases of non-appearing parties emerge:

–  The intention of Article 53 is that in the case of non-appearance, neither party should be placed at a disadvantage and the non-appearing party cannot be permitted to profit from its absence.

–  With regards to jurisdiction, it is not clear whether the tribunal is obliged to investigate all possible jurisdictional objections, but it must address possible objections raised by the non-appearing party through unofficial communications.




–  With regards to whether a claim is well founded in law,

•  The tribunal is not solely dependent on the parties’ arguments with respect to the applicable law, as the tribunal is presumed to know the law.

•  The burden of establishing or proving rules of international law cannot be imposed upon the parties, as the law lies within the judicial knowledge of the tribunal.




–  With regards to whether a claim is well-founded in facts:

•  The tribunal must be certain that the facts on which its decision is based are supported by convincing evidence.

•  The tribunal must satisfy itself that it is in possession of all the available facts.

•  The tribunal is not bound to confine its consideration to the material submitted by the parties; it can rely on expert evidence, information in the public domain, statements by representatives of states, and information which received from the non-appearing party whether directly or indirectly.




-- Overall:

•  The ICJ has taken note of and referred to communications filed by the non-appearing State not in conformity with the relevant requirements of the Statute and Rules of Court, such as “White Papers” and even less formal documents.

•  Some commentators criticize this practice on grounds that the non-appearing State is placed in a position more advantageous than the appearing party, although the ICJ considers this necessary to ensure fair treatment.




•  UNCLOS examples? –  The only other UNCLOS Part XV case with a non-participating

party is the Arctic Sunrise Arbitration (2013), the Netherlands against Russia.

–  ITLOS Provisional Measures Order (22 Nov 2013): the Netherlands should not be disadvantaged because of the non-appearance of Russia, and the Tribunal therefore must identify and assess the respective rights of the Parties involved on the best available evidence.




•  Separate Opinion of Judge Wolfrum and Judge Kelly, ITLOS Provisional Measures Order:

“In this context the Order of the Tribunal could have shed some further light on how non-appearance is to be seen under a mandatory dispute settlement system such as the one established under Part XV of the Convention. The non-appearing party not only weakens its own position concerning the legal dispute but also hampers the other party in its pursuit of its rights and interests in the legal discourse of the proceedings in question. But, more importantly, it hinders the work of the international court or tribunal in question. The international court or tribunal may in such a situation have to rely on the facts and the legal arguments presented by one side without having the benefit of hearing the other side. This cannot be fully compensated by recourse to facts which are in the public domain.

.




However, there is a more fundamental consideration to be mentioned. In the case of States having consented to a dispute settlement system in general – such as the Netherlands and the Russian Federation by ratifying the Convention on the Law of the Sea – non-appearance is contrary to the object and purpose of the dispute settlement system under Part XV of the Convention. … Judicial proceedings are based on a legal discourse between the parties and the co-operation of both parties with the international court or tribunal in question. Non-appearance cripples this process…For that reason article 28 of the Statute should not be understood as attributing a right to parties to a dispute not to appear, it rather reflects the reality that some States may, in spite of their commitment to co-operate with the international court or tribunal in question, take this course of action. The Order of the Tribunal does not express these concerns sufficiently and appears to be overdiplomatic.

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