LIAO Shiping

Abstract:International courts and tribunals are confronted with the complicated task of fact-finding due to the lack of clarification and assistance from the non-appearing party.In such proceedings,dispute settlement bodies have often adopted “the claim is well-founded in fact” as a fact-finding requirement,and some have even developed in practice the standard of “best available evidence” as a further elaboration of the aforesaid requirement.It follows from practice that this requirement needs to be implemented in a case-by-case context.In the absence of proof and cross-examination by the party not appearing before the court,dispute settlement bodies should be more prudent in dealing with the evidentiary materials in the case,particularly in examining whether the materials submitted by the party appearing before the court corroborate each other,as well as with those obtained by the dispute settlement body on its own initiative,and whether there are any contradictions.

Key Words:Non-Appearance;Standard of proof;ICJ;ITLOS;South China Sea Arbitration

I.Introduction

Non-appearance,1The non-appearance rules are embodied in nearly all the foremost inter-state dispute settlement mechanisms.The expressions in the Statute of International Court of Justice,the Statute of International Tribunal on the Law of the Sea and Annex VII of United Nations Convention on the Law of the Sea are “not appear” before the court/tribunal/arbitral tribunal.In International Center for Settlement of Investment Disputes Arbitration Rules,non-appearance is “default”.Strictly speaking,non-appearance is not treaty language but rather an academic formulation,although little or no difference in connotation between these two contexts.as an international litigation technique,2Gerald Fitzmaurice,The Problem of the Non-Appearing Defendant Government,British Yearbook of International Law,Vol.51:1,p.89 (1980).is sometimes taken by sovereign States when they are reluctant to settle disputes by resorting to third party adjudication.Non-appearance is often criticized by scholars,3Andreas Zimmermann,Christian Tomuschat,Karin Oellers-Frahm &Christian J.Tams eds.,The Statute of the International Court of Justice:A Commentary,Oxford University Press,2012,p.1351.as adopting such a posture based on various legal and non-legal factors invites difficulties in the cross examination of evidence and the court’s broader fact-finding function.As such,it poses an challenges not only to the fulfillment of the basic function of international courts and tribunals,but also to the legitimacy of proceedings,since state consent remains the foundation of jurisdiction for these bodies,and nonappearance inevitably risks losing the case due to tactical rather than meritorious considerations.

The fact-finding in non-appearance have been addressed in the basic documents of various international courts and tribunals,and further clarification and exploration of these procedures can be inferred by their practices.However,application of the rules still remains obscure in several aspects.This paper will sort out the practices of the dispute settlement bodies and,4Due to the limitation of the length,this paper only examines the practice of non-appearance of a party in interstate dispute settlement mechanisms.The practice of non-appearance of a party in mechanisms such as international investment arbitration is beyond the scope of this paper.upon this basis,make an analysis and comment on the application of rules in this area.

II.Fact-finding in Non-appearance in the International Court of Justice (ICJ)

A.Provisions of the Statute of the ICJ

As the most important international judicial organ in the world,the ICJ established its rules on fact-finding in non-appearance in Article 53 of its Statute(hereinafter “Article 53”),which reads:

Whenever 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 favor 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.

First,the party appearing before the court has the right to seek a favorable judgment from the court,but latter may not make such a judgment on its own authority in the absence of such a request.Article 53 applies not only to the nonappearance of the respondent,but also to the applicant,although applicants seldom do so.

Second,the text of Article 53 applies not only to the non-appearance,but also fails to defend its case.The latter is broader in scope,and in theory,also includes cases where the State Party does not submit written representations and does not express its views on the case.Of cause,if a party chooses not to submit a written statement in a specific proceeding,it will not normally appear to defend itself in that proceeding.

Third,the favorable judgment presented here is different from the default judgment or the judgment without notice in domestic law.In the case of a default judgment under domestic law,in either the ex parte debate mode under Japanese law or the default judgment mode under US law,it is rendered on the premise that the party concerned participates in the proceedings,who is just unable to attend the trial for various reasons;whereas in the case of a favorable judgment,the party concerned may not participate in the proceedings,including the trial,from the outset.A judgment without notice refers to the judgment rendered directly by the court after verification of the facts and without a hearing.If the ICJ rules in favor of the party appearing before it,a hearing is still required.

Fourth,the court is required to make findings of fact in a case when it renders a favorable judgment at the request of the party appearing before it.“Well founded in fact” is the requirement for the court to make findings of fact in the absence of a party.This requirement applies to proceedings at the substantive phase,and may also apply to proceedings incidental to the case,including the indication of provisional measures5It is an interesting issue which article shall be applied to establish jurisdiction in taking provisional measures in cases of non-appearance.The court should verify its jurisdiction in such cases in order to comply with the requirements of Article 53,and establish its jurisdiction for purposes of provisional measures in the same case on the basis of prima facie evidence according to Article 41 and its jurisprudence.See Anglo-Iranian Oil Co.Oil Company (United Kingdom v. Iran),Preliminary Objections,ICJ Reports 1951,p.111(1951);Tehran hostage (United States of America v. Iran),Questions of jurisdiction and/or admissibility,ICJ Reports 1980,p.13,para.15 (1980).See also Takane Sugihara,The Judical System of the International Court of Justice,translated by WANG Zhi’an &YI Ping,China University of Political Science and Law Press,2006,p.226-230 (in Chinese).If Article 53 applies when provisional measures are requested,the court should determine its jurisdiction before proceedings on the merits,which in practice conflicts with its judicial function being fulfilled appropriately.If Article 41 applies,it raises the issue of the apparent inconsistency with Article 53,which requires establishing jurisdiction over the entire dispute,in contrast to Article 41’s far more lenient test requiring a prima facie determination.A reasonable approach may be to apply Article 41 as lex specialis in order to reconcile the two articles above,since the ICJ seldom refers to Article 53,but sometimes refers to Article 41 in ruling on provisional measures in cases of non-appearance..6Supra note 3,Andreas Zimmermann et al.,p.1327.

Fifth,Article 53 thereof mandates that the court must satisfy itself that the claim of the party appearing before it is well founded in both fact and law,and that it does have jurisdiction.It is quite difficult to distinguish between questions of fact and questions of law in any legal system.The two often appear in intertwined forms,which,coupled with the need for the court to examine questions of fact during its own examination of jurisdiction,makes it inevitable that the study of fact-finding will involve questions of application of law versus jurisdiction.

The aforesaid provisions of theStatute of the International Court of Justicedo not grant the party appearing before the court a direct right to a judgment in its favor,mainly to protect the substantive rights of the party not appearing before the court and its right to seek judicial remedies.Also,the legitimate rights and interests of the party appearing before the court shall not be prejudiced by the act of not appearing in court.The party not appearing before the court shall be subject to the risk of losing the case due to its inability to challenge the evidence and arguments presented by the party appearing before the court as a result of not appearing before the court to present its own grounds and arguments.For this reason,the Statute of the International Court of Justice needs to find a proper balance between the interests of both parties,and the establishment of the fact-finding requirement in the absence of appearance before the court is one of the measures to find such balance.

B.Relevant Judicial Practice of the ICJ

As shown in Table 1 below,there have been fifteen cases in ICJ history,from which the Court has developed its jurisprudence of fact-finding in instances nonappearance.7See ZHAGN Hua,The Emerging Problem of Non– appearance in the UNCLOS Dispute Settlement Mechanism,Pacific Journal,Vol.22:12,p.2 (2014).(in Chinese)In its jurisdiction in these cases,ICJ has elaborated further on factfinding.

Table 1 Non-appearance cases at the ICJ

Table 2 Non-appearance cases at the ITLOS

Table 3 Non-appearance Cases under the Annex VII Arbitration

1.Admissibility

The admissibility ofevidence is the starting point of the law for considering evidence and carrying out the fact-finding function,however the Court has no explicit rules governing these procedures in cases of non-appearance and appearance.Some scholars conclude that,except that the parties may not submit as evidence the materials used in the negotiation process to reach a settlement of the dispute,8James Gerard Devaney,Fact-Finding before the International Court of Justice,Cambridge University Press,2016,p.36.the court has no special restrictions on the competence of evidence submitted by the parties,9Chester Brown,A Common Law of International Adjudication,Oxford University Press,2007,p.91;Id,James Gerard Devaney,p.35-36;Supra note 3,Andreas Zimmermann et al eds.,p.1242;Keith Highet,Evidence,the Court,and the Nicaragua Case,American Journal of International Law,Vol.81:1,p.1 (1987).and it has not expressly denied the competence of evidence even illegally obtained.10Supra note 8,James Gerard Devaney,p.37-38.

2.Fact-assessment

Production of evidence and evaluation of the evidence are the key elements of the fact-finding function,and it is only through evidence assessment that the Court is able to identify credible facts most relevant to the resolution of a dispute.However,neither theStatutenorRulescontain any provisions governing these tasks.The Court,in practice,possesses a large extent of discretion to examine and evaluate the evidences before it,and has developed its own jurisprudence over several decades.It remains unclear whether the jurisprudence developed in cases of appearance can be credibly applied to cases of non-appearance.

In theCorfu Channelcase,Albania did not participate in the trial on compensation.The court held that “the relevant facts of a party’s request should be examined in accordance with the requirements of article 53,but such examination is not exhaustive,as this is not possible in many cases.It is sufficient that the court finds,in the manner it sees fit,that the claims submitted have merit “.11Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania),ICJ Reports 1949,p.244,248.In the case ofMilitary and Paramilitary Operations in Nicaragua,the United States of America (U.S.) was absent from the substantive phase after participating in the jurisdictional phase of proceedings.In his ruling,the court noted that “need to like the other parties in court case,find out,if one party fails to appear in court cases there are convincing evidence to prove the existence of the relevant facts”,“according to article 53,the court is required to adopt various ways to use a variety of materials to ensure the prosecution submitted requests in a matter of fact has according to,and to abide by the basic standards of judicial”,which does not mean,however,that the fact-finding practices in cases where both parties appear and cases where one party does not appear are identical.12Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America),ICJ Reports 1986,p.14-15,para.29-30,p.39-40,para.59.The court needs to strike a balance between fulfilling the fact-finding standard and not prejudicing the litigation rights and interests of both parties,while not being biased in the litigation rights and interests of the parties appearing and not appearing before the court.In theNuclear Testscase,the Court stressed the difficulty of obtaining all the facts available in the absence of the parties.13Nuclear Tests (Australia v. France),ICJ Reports 1974,p.468,para.32.

Notwithstanding the absence of a clear meaning of “well found in fact” in these statements,in concrete judicial practices,the attitude of the ICJ towards different types of evidentiary materials in cases provides certain guidance for understanding and grasping the standard of fact finding in the proceedings where one party doesn’t appear before the court.Given the lack of interrogation and cross-examination of the evidence presented,the court tends to be very prudent with regard to the evidentiary materials in the absence of one party in court,as the unilateral admission of evidence presented by the party appearing before the court may pose a risk of fact finding,thus failing to meet the requirement of “well found in fact”.

a.Witnesses

Witness is a relatively common type of evidence in proceedings where there is one party not appearing before the ICJ,and witnesses may participate in the proceedings by submitting testimony or may appear before the court at the same time to testify under oath.A witness statement is not equivalent to live testimony evidence,and it is the task of the Court to evaluate and assess any witness statement.In its assessment,the content of the witness statement,the identity of a witness,whether a statement is in original language or not,and corroboration by other forms of evidences before the Court,should be taken into the consideration pursuant to the jurisprudence of the Court.14Admissibility of evidence refers to whether the materials submitted by the parties to the ICSID meet the statutory requirements for evidence;and probative value refers to the extent of the role of admissible evidence in proving the facts to be proved.In the judicial practice of the ICJ,the parties sometimes submit testimony that has been made under a specific oath procedure and certified by a specific domestic authority,i.e.,testimony under oath.

In theNicaraguacase,Nicaragua accused the U.S.,which did not appear in merits,of participating in rocket attacks against the Potosi Naval Base launched by speedboats and helicopters,with several forms of evidence including an affidavit made by Edgar Chamorro,the former leader of Fuerza Democratica Nicaragüense(FDN).Chamorro stated in his affidavit that the attack was actually carried out by the Unilaterally Controlled Latino Assets (UCLA),composed of mercenaries dispatched by U.S.Central Intelligence Agency (CIA),and the FDN was instructed by the CIA to claim responsibility for the attack.However,Chamorro was not able to provide the Court with an information source,he did not actually participate in the attack,and never mentioned the attack openly when he was the leader of FDN until 1985.Moreover,he previously denied FDN involvement in the attack.The Court thus determined that Chamorro’s testimony was probably hearsay,and cannot be considered as probative evidence to support the claim.15Supra note 12,p.50,para.84.

For the purpose of charging the U.S.with responsibility for attacking Puerto Sandino and other areas,Nicaragua called upon several witnesses to present before the Court,including the Vice-Minister of the Interior and the Minister of Finance of Nicaragua.In one of the testimonies,the witness also took the oath specifically in the District of Columbia in accordance with local law.In addition,the witness testimony included an affidavit of the Nicaraguan Deputy Minister of the Interior,written in English,accompanied by a notarized certificate in Spanish,and attested to by a notary public in Nicaragua,attesting to the authenticity of the document’s signature,who later testified in the substantive proceedings,along with the Minister of Finance.The court found that in the case,the U.S.had also submitted a testimony under oath of the Secretary of State during its participation in the jurisdictional phase of the proceedings,and that this testimony was contradicted in content by two testimonies of high-ranking officials of Nicaragua,making the probative value of the testimonies of Nicaraguan government officials extremely limited,because the government officials tended to testify in favor of their home country and went to great lengths to avoid phrasing their testimony in a way that could be interpreted in favor of the other side,with the exception,of course,of the self-admission in the testimony.16Id,p.43,para.70.Further,Nicaragua also presented one witness of the respondent State’s nationality who was formerly an employee of the U.S.government in a clandestine role,thus his testimony was provided with certain confidentiality conditions so as not to violate USA law.In the general practice of the Court,two forms of testimony are regarded as prima facie of superior credibility:first the evidence of a disinterested witness,and second the evidence of a party submitted against its own interest.17Id,p.42-43,para.69.This latter was argued in this case by counsel for Nicaragua,although the intentional non-disclosure of the name or other information concerning the witness inevitably weakens its probative value.

b.Experts

Experts are individuals who express an opinion on certain facts based on specialized knowledge,and can be appointed by disputing party or the Court pursuant to Article 50 of the Statute.It is common practice for the disputing party to appoint an expert in case before the ICJ,while the procedures differ for Courtappointed experts.

The Court,in non-appearance cases,has only once appointed an expert to assist it to deal with facts.In theCorfu Channelcase,the Court appointed expert investigated the facts concerning the North Corfu Strait and the types of mine that struck the vessels,18Supra note 11,p.124-127.and referred to the expert report in its deliberation.The Court pointed out thatfactors such as the quality of the expert,the approach employed in the enquiry and the neutrality of the expert should be taken into consideration when evaluating expert testimony.19Corfu Channel Case,Merits,ICJ Reports 1948,p.21.In contrast to theCorfu Channelcase,the Court in theNicaraguacase chose to declare that no expert would be appointed,although Nicaragua invited the Court to do so.20Supra note 12,p.40,para.61.

The court also appointed experts on its own initiative only in the Case concerning theDelimitation of the Maritime Boundary in the Gulf of Maine Areaamong cases where the parties appeared before it.In the Case concerning theFrontier Dispute (Burkina Faso/Mali),the parties appearing before the court even requested the court not to appoint an expert.21Frontier Dispute (Burkina Faso/Republic of Mali),Order of 9 April 1987,ICJ Reports 1987,p.7-8.In general,fact-finding is an important basis for the exercise of the court’s judicial functions,especially in cases where fact-finding is made difficult by the non-appearance of a party.In practice,however,the court is not so inclined to appoint experts on its own to conduct investigations.In summary,it seems that after theCorfu Channelcase,the Court,even when burdened with onerous fact-finding challenges,is reluctant to appoint experts for investigation in non-appearance cases.This pro-active approach to factfinding has led to several criticisms both inside and outside the Court.22Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America),Dissenting Opinion of Judge Schwebel,ICJ Reports 1986,p.321-322,para.132-134;Supra note 8,James Gerard Devaney,p.115-126.

c.Documentary Evidence

Documentary evidence is a form of evidence that proves the facts to be proved through the contents recorded therein,and it is also the most important form of evidence in the judicial practice of the ICJ.Therefore,documentary evidence is frequently used in the proceedings where one party doesn’t appear before the court.

In theTehran Hostagecase,considering the sentiment against the USA within the territory of Iran and Iran’s non-appearance,the USA was full aware of the difficulty in obtaining evidence and thus submitted reports,photos and media information from radio,television newspaper and other sources in Iran and other States all over the world.For instance,the USA translated speeches of Iranian officials in press releases,radio and television into English,and submitted them to the Court in support of its claim on indication of provisional measure.The Court found that:

So far as newspaper,radio and television reports emanating from Iran are concerned,the Court has necessarily in some cases relied on translations into English supplied by the Applicant.The information available,however,is wholly consistent and concordant as to the main facts and circumstances of the case.This information,as well as the United States Memorial and the records of the oral proceedings,has all been communicated by the Court to the Iranian Government without having evoked from the Government any denial or questioning of the facts alleged before the Court by the United States.Accordingly,the Court is satisfied that,within the meaning of Article 53 of the Statute,the allegations of fact on which the United States bases its claims in the present case are well founded.23Case Concerning the United States Diplomatic and Consular Staff in Tehran,ICJ Reports 1980,p.9-10,para.12-13.

The quotation above does not mean that lack of denial from a non-appearing party on submitted evidence is of equal value to the demonstration of facts.The most critical factor remains the consistency and corroborative nature of various public information,which should be reviewed by the Court during the fact-finding process.

Also in theNicaraguacase,published papers,extracts from books and newspapers information were submitted to the Court.The Court,sometimes implying their potential objectivity,treated them as supporting materials,but not qualified evidence,and put them under review.When alleging USA involvement in attacks on the port of Corinto,Nicaragua submitted a report of theNew York Timesand a translated transcript addressed to President Reagan at a press conference nine days after the attack.24“Question:Mr.President,regarding the recent rebel attacks on a Nicaraguan oil depot,is it proper for the CIA to be involved in planning such attacks and supplying equipment for air raids? And do the American people have a right to be informed about any CIA role? The President:I think covert actions have been a part of government and a part of government’s responsibilities for as long as there has been a government.I’m not going to comment on what,if any,connection such activities might have had with what has been going on,or with some of the specific operations down there.But I do believe in the right of a country when it believes that its interests are best served to practice covert activity and then,while your people may have a right to know,you can’t let your people know without letting the wrong people know,those that are in opposition to what you’re doing.”The report showed Nicaragua notified the USA Senate and the Secretary of State via diplomatic notes and the USA did not deny receiving these notes.The Court dismissed the report only for the absence of the original text of the notes.As regard to the transcript,the Court analyzed its text and context only to find the USA had something to do with the attack other than taking direct participation into the attack.25Supra note 12,p.48-49,para.82-83.When charging the USA with the rocket attack against the Potosi Naval Base,Nicaragua submitted a classified CIA internal memorandum or report,excerpts from which were published in theWall Street Journalon 6 March 1985.According to the newspaper,“intelligence and congressional officials” had confirmed the authenticity of the document.So far as the Court was aware,no denial of the report was made by the U.S.administration.However,the Court still remained cautious and decided to resort to other documents for confirming authenticity.26Id,p.50,para.84.

Among the universe of documentary evidence,statements of senior officials and politicians before state organs or international or regional organizations,or press conferences or interviews,are of relatively higher probative value when they acknowledge facts or conduct unfavorable to the State represented by the person who made them.They may then be construed as a form of admission against interest.However,the court should be prudent in this regard and should not adopt a selective approach,but rather look at the manner in which these public statements were made,which would have a greater probative value if it was published in an official publication,whether national or international.27Supra note 23,p.10,para.13.The court should also examine whether the material submitted was in the original language or translation of the statements,and whether it was submitted in accordance with the means provided for in theStatute of the International Court of Justiceand theRules of Court,etc.Inevitably,the court would have to examine the statements specifically to determine whether they constitute a self-admission.28Supra note 12,p.41,para.65.

d.Irregular Procedure Communications

In a non-appearance procedure of a party,the non-appearing party does not participate in the proceedings of the case.In practice,however,the non-appearing party will often issue various forms of documents setting out the State’s position on the jurisdiction of the court and even the substance of the case,and will even submit various materials to the court through informal channels in order to communicate with the court.These documents and materials are also known as“out-of-court documents”.It is worth noting that in the practice of the ICJ,there is no practice of non-appearing parties refusing to communicate with the Court by not submitting any “irregular procedure communications” at all stages of the case.29Institute of International Law, Observations of the members of the Fourth Commission of the Institute of International Law -Preliminary Report,Yearbook of the Institute of International Law,1991,p.255.The ICJ is more open to such documents in its practice of non-appearance proceedings.

In theAegean Sea Continental Shelfcase,Turkey submitted to the Court two documents raising its preliminary objectionde factoon the jurisdiction.A further extra-case document was subsequently filed on April 24,1978,and the court,at the hearing,referred to a number of facts mentioned in the statement as evidentiary material for the purpose of establishing the existence of a genuine dispute between Turkey and Greece.30Aegean Sea Continental Shelf (Greece v. Turkey),ICJ Reports 1976,p.5,para.5,p.12,para.30.In theOil Companycase,the Court referred to a telegram sent by Iran on June 29 1951,which commented on case facts.31Anglo-Iranian Oil Co.(United Kingdom v. Iran),ICJ Reports 1951,p.152-154,para.15.These facts were taken into account by the court during the phase of the indication of provisional measures (in the absence of Iran) and during the jurisdictional phase (with Iran’s participation).In theNottebohmcase,Guatemala did not present before the Court at the first phase of preliminary objection,and at the same time transmitted a report to the Registrar to ask for permission to postpone the date of hearing,or limit itself to adjudicating its preliminary objections.32Nottebohm Case (Liechtenstein v. Guatemala),ICJ Reports 1953,p.117.In theTehran Hostagecase,33Supra note 23,p.8,para.10.two documents were submitted to the Court by Iran through telegram.In theNicaraguacase,the U.S.submitted a document to the Court with the title of “Revolution Beyond Our Borders” after quitting from the merits,with the intention to justify the policy of the U.S.towards Nicaragua.During the hearing on the merits,the Court asked Nicaragua questions concerning the report,which Nicaragua did not respond to directly.34Supra note 12,p.44,para.73.

Accepting various irregular procedure communications from non-appearing parties has been criticized by international law academy.Some argue that the practice advantages the non-appearing party relative to the appearing party,since such communications arede factoexempt from the terms,conditions and deadlines otherwise imposed upon the parties submitting to theRules of Court.35Thirlway H.W.A.,Non-Appearance before the International Court of Justice,Cambridge University Press,1985,p.137-157.This criticism is not without merit,but for the sake of fulfilling the requirement of“well founded in fact”,coupled with the court’s authority to collect evidence on its own initiative,the court will still consider these out-of-court documents,otherwise there is a risk that the interests of the party not appearing before the court will be prejudiced due to unclear fact findings,which will,in turn,undermine the judicial function of the court.Nevertheless,the Court may take note of the communications to secure the proper administration of justice and seek balance between the litigation interests of the non-appearing and appearing parties.36Supra note 2,Andreas Zimmermann et al eds.,p.1348.

e.Materials initially acquired by the Court

Under Article 44,paragraph 2,and Article 48 of theStatute of the International Court of Justiceand Article 66 of theRules of Court,the court is empowered to take measures,proprio motu,to procure evidence at a place or locality to which the case relates.37See Art.44,48 &66 of the Statute of the International Court of Justice.In theNuclear Testcase,the Court expressed regret that the French Government had failed to appear,nevertheless it proceeded with the case to its conclusion,and in doing so took regard to any documentary or other evidence it found relevant.38Supra note 13,p.461,para.15.In theNicaraguacase,the Court considered the declarations of Nicaragua,Honduras and the USA,together with the statements of their representatives in international organizations and resolutions adopted by these organizations insofar as factually relevant,whether or not these materials had been submitted by a party or not.39Supra note 12,p.44,para.72.

f.Amicus Curiae

As per theStatue of the International Court of Justice,there is no regulation on the jurisdiction and manner of amicus curiae admissibility by the court.In practice,the Court does not accept amicus curiae documents in either non-court proceedings or bilateral proceedings,but only in advisory proceedings.40International Status of South West Africa,Pleadings,Oral Arguments,Documents,No.10,p.324,No.18,p.327.InPractice Guide XIIissued by the Court in 2004,unsolicited amicus briefs are clearly defined as “readily available public information” and are not part of case materials.

3.Standard of Proof

The standard of proof remains obscure and inconsistent in ICJ jurisprudence.There is no guidance found in theStatuteandRules.In some cases,the Court refers to “convincing evidence” or “conclusive evidence” as a test,41Supra note 12,p.14,24,para.29;Armed Activities on the Territory of the Congo(Democratic Republic of the Congo v. Uganda),ICJ Reports 2005,p.168,200,208,268,para.57,83,303;Supra note 11,p.4,17.and in other instances,“balance of probabilities” or “balance of evidence”42Land,Island and Maritime Frontier Dispute (El Salvador/Honduras:Nicaragua intervening),Judgment of 11 September 1992,ICJ Reports 1992,p.351,506,para.248;Oil Platforms(Islamic Republic of Iran v. United States of America),ICJ Reports 2003,p.161,189,para.57.are used.Some scholars observe that “preponderance of evidence” may be a default standard of proof in most of the cases,and “beyond any reasonable doubt” is also applied in the jurisdiction phase and cases concerning grave breaches of international human rights law and international humanitarian law.43Rüdiger Wolfrum &Mirka M?ldner,International Courts and Tribunals,Evidence,Max Planck Encyclopedia of Public International Law,2013,para.77.

Despite the court’s repeated emphasis on the need to satisfy the requirement of “well founded in fact” in the proceedings where one party doesn’t appear before the court,the legal status of this requirement remains unclear,i.e.,does it constitute a standard of proof applicable in proceedings with default of appearance? Or is it different from the standard of proof in proceedings with appearance of both parties?Due to the lack of evidence from the party not appearing before the court,this party is clearly unable to meet its burden of proof.Article 53 does not provide that the party appearing before the court automatically obtains a favorable decision,but rather gives the right to apply for a favorable decision to the party appearing before the court,with the final decision in the hands of the court.In practice,the court has never made a favorable decision directly at the request of the party appearing before the court,which indicates that the “preponderance of the evidence standard”is difficult to apply in the proceedings where one party doesn’t appear before the court.In this regard,is “well founded in fact” identical to “beyond a reasonable doubt”? In practice,the court has only mentioned that there must be “compelling evidence” of the existence of facts,44Supra note 9.but it is not clear whether this indicates that the court adopts the “beyond a reasonable doubt”.From a jurisprudential perspective,however,it appears that the requirement that evidence submitted by the party appearing before the court in the proceedings where one party doesn’t appear before the court cannot be admitted unilaterally suggests that the standard of proof in the proceedings where one party doesn’t appear before the court should be superior to the “preponderance of the evidence standard”.

C.Summary

From the above,we may conclude that the “well founded in facts” requirement of Article 53 is a comprehensive requirement for the Court when carrying out its fact-finding function in non-appearance cases.The Court,in practice,tends to avoid interpreting the standard of proof explicitly in the case.This approach leaves room for the Court,attorneys and agents in subsequent cases to argue the similarities and dissimilarities between past precedents and their own cases.However,commentators have noted that Court practice has led to the selective citation of precedent and weakens the value of precedent in subsequent cases.45W.Michael Reisman,Respecting One’s Own Jurisprudence:A Plea to the International Court of Justice,American Journal of International Law,Vol.83:2,p.313-314 (1989).

In order to carry out its judicial function properly,the Court should strengthen its procedures governing fact-finding when the disputing party does not appear,and should not act as what the non-appearing party should do.It is true that the Court remains quite cautious as to the materials submitted by appearing parties and avoids accepting materials as evidence without corroboration even if the materials can be categorized as public knowledge.Moreover,the Court,both in non-appearance and appearance cases,seldom procures evidence itself,let alone making site visits,appointing experts or otherwise obtaining evidence not included in the evidence list submitted by a litigant.The reactive approach the Court has adopted in nonappearance cases obviously works to the detriment of the disputing party,and strengthens the evidence submitted by an appearing party since countervailing materials are not available.Some scholars even argue that this approach is not consistent with the object and purpose of Article 53.46Supra note 35,Thirlway H.W.A.,p.128.

There is much literature that analyzes the reasons why the Court is reactive in its fact-finding role,despite being vested with relatively broad power by theStatuteandRules.The first reason is the preference for documentary evidence in ICJ jurisprudence,i.e.,the Court prefers to examine documentary evidence rather than other forms of evidence such as testimony.In theContinental Shelfcase,although Libya appointed a single expert who had been cross-examined before the Court,the Court still chose to settle the case solely on the basis of maps and other documents submitted by the parties,and eschewed taking further investigation.The second reason is the absence of explicit rules governing the admissibility of evidence,which opens the door to any material a litigant wants to put before the Court and the Court thus has no choice but to examine every submission.As a result,the Court is always overburdened with submissions that consume much of its time and ultimately precludes it from acquiring information independently.The third reason lies in the sovereign nature of inter-state litigation.Since the parties may revoke their consent to the jurisdiction of the Court at any proper time,the Court has to adopt a “softly-softly” approach to evidence to avoid States feeling as if their right to a fair hearing is being violated.Additionally,due to the principle of State equality,the Court has no power to force the disputing parties to produce evidence that is critical to the case but they are unwilling to provide,and no adverse inference can be drawn from the failure to produce evidence.If the disputing party explicitly or implicitly expresses concerns regarding a proposed site visit or appointing an expertex officio,the Court may finally decline to do so.Irregular communications in non-appearance cases are perhaps another contributing factor to the reactive approach of the Court.Irregular communications,although submitted outside theStatuteandRules,de factoassists the Court in understanding alternative arguments to those presented by the appearing party.By examining irregular communications,the Court can synthesize an adversarial structure between nonappearing and appearing parties,which facilitates its fact-finding.

In sum,the “well founded in fact” in Article 53 neither establishes a new standard of proof nor the rule of admissibility for evidence in non-appearance cases,but rather sets a general requirement for fact-finding that the Court must satisfy in its discretion in each particular case.However,the Court’s discretion in non-appearance cases is not without limitation.The Court must be more cautious as to evidence before it,reading the text and context of evidence more strictly,paying more attention to corroboration and consistency of evidence unilaterally submitted by a disputing party,since no agreed facts will be available in non-appearance cases.Further,the general international law on evidence,which remains applicable,directs the Court to consider authenticity and relevance of evidence in making its fact assessment.

III.Fact-finding in Non-appearance Cases at the International Tribunal for the Law of the Sea (ITLOS)

A.Practice of the ITLOS

As a universal and specialized forum for the settlement of disputes between contracting parties to the United Nations Convention on the Law of the Sea(UNCLOS),the ITLOS established rules similar to those of the ICJ with respect to non-appearance cases in its Statute,under the title of “Default”,which reads:

When one of the parties does not appear before the Tribunal or fails to defend its case,the other party may request the Tribunal to continue the proceedings and make its decision.Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.Before making its decision,the 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.

Most of the expressions in the regulation are very similar to the wording of Article 53 of theStatute of the International Court of Justice,which still refers to“well founded in fact” as a fact-finding requirement for the proceedings where one party doesn’t appear before the court.However,there are two differences:First,Article 28 draws on the statements made by the ICJ in the practice of cases of default of appearance and incorporates the continuation not constituting a bar to the proceedings into the provision;second,the provision that the party appearing before the court has the right to call upon the court to decide in favor of its claim is deleted.

To date,there are only two non-appearance cases at the ITLOS,theArctic Sunrisecase,and theDetention of Ukrainian Naval Vessels.

In theArctic Sunrisecase,Netherlands,who is the flag State of the vesselArctic Sunriseoperated by Greenpeace International,requested the tribunal to indicate provisional measures to ask Russia to release the vessel and its staff detained for alleged violations of Russia domestic law and regulation.In its decision on this case,the tribunal suggested that Russia’s absence and inability to provide the tribunal with information on the facts and law of the case could not put the Netherlands at a disadvantage in the proceedings and therefore required an assessment of the rights of the parties based on the best available evidence.47The “Arctic Sunrise” Case (Kingdom of Netherlands v. Russia Federation),Request for the Prescription of Provisional Measures,Order,ITLOS Reports 2013,p.243,para.53-57.The tribunal,however,did not elaborate on the meaning of the “best available evidence”,but merely ruled that Russia was required to release the ship and crew and guarantee their departure from Russian jurisdiction in the context of the documents submitted by the Netherlands in this case,Russia’s out-of-court documents submitted to the tribunal on 22 October 2013,and Russia’s Official Report of seizure of property issued on 15 October 2013,regarding theArctic Sunrise.

Similar formulations are employed in the jurisprudence of other courts and tribunals.For example,Article 2.2.1.1 of the Anti-Dumping Agreement of the World Trade Organization (WTO) requires authorities consider all available evidence on the proper allocation of costs.InUS — Soft Lumber V,the Appellate Body states:Although the second sentence of Article 2.2.1.1 does not,as a general rule,require investigating authorities to compare allocation methodologies to assess their respective advantages and disadvantages in each and every case,there may be particular instances in which the investigating authority may be required to compare them in order to satisfy the explicit requirement of the second sentence of Article 2.2.1.1.48US — Softwood Lumber V,WTO AB Report,WT/DS264/AB/R,2006,para.138.

It can be concluded that whether the requirement of available evidence has been satisfied is to be determined in a case-by-case basis,since the available evidence varies from case to case and need to be evaluated in the specific context.

To understand “best available evidence”,there are at least two aspects to be noted:First,although this requirement is made in the absence of one party,it seems that it can also be applied in the presence of both parties.The reason is in bilateral court proceedings,the parties may also refuse disclosing or providing evidence,forcing the court to select the best evidence available.Second,it is not clear whether this criterion,which was introduced by the court in cases directing interim measures procedures,can be applied to the substantive hearing of non-court cases.The context of theArctic Sunrisecase should be considered in evaluating the meaning of best available evidence.The merits of theArctic Sunrisecase were not subject to ITLOS but rather to aad hoctribunal under Annex VII of UNCLOS.Regarding the jurisdiction issues,the law applied by the tribunal is Article 290,paragraph 5,of the UNCLOS,49This Article stipulates:Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section,any court or tribunal agreed upon by the parties or,failing such agreement within two weeks from the date of the request for provisional measures,the International Tribunal for the Law of the Sea or,with respect to activities in the Area,the Seabed Disputes Chamber,may prescribe,modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires.Once constituted,the tribunal to which the dispute has been submitted may modify,revoke or affirm those provisional measures,acting in conformity with paragraphs 1 to 4.without any reference to Article 28 of theStatute of the International Tribunal for the Law of the Sea,which is in line with the practice of the ICJ and appears to be interpreted as the tribunal treating Article 290 of UNCLOS as a special rule of law for the determination of jurisdiction under Article 28 of theStatute of the International Tribunal for the Law of the Sea.Regarding the fact-finding issues involved in the establishment of jurisdiction over provisional measures,the tribunal did not apply the provisions of Article 28 of theStatuteof the International Tribunalfor the Law of the Sea concerning the proceedings with default of appearance,i.e.,“well founded in fact”.In this case,the main task of the Tribunal was to determine whether thead hoctribunal under Annex VII of UNCLOS has jurisdiction on indication of provisional measures requested by the Netherlands,not whether the claim of the Netherland in the merits is well-founded in law and fact.In this particular context,there is room for interpretation of the application of “best available evidence” in subsequent cases.As noted earlier,expressions such as “best available evidence” or “available evidence” mean that compliance with this requirement needs to be found in the context of the facts of the individual case,which is no different from the requirement of “well founded in fact”,and the tribunal’s discretion in finding the facts remains wide.

In summary,due to the limited cases and the context,the jurisprudence of fact-finding in non-appearance procedure before ITLOS remains unclear.Further,the standard of proof employed is also obscure.Judge Wolfrum once wrote in his separate opinion in theM/V Sagacase that the concept “well-founded” in Article 28 is not a standard of proof in the sense of “preponderance of evidence”,and it is rather comparable to the standard of proof in the sense of “proof beyond reasonable doubt” as applied in many national legal systems.50The M/V “Saiga” (No.2) Case (Saint Vincent and the Grenadines v.Guinea),Separate Opinion of Vice-President Wolfrum,ITLOS Reports 2013,p.94-95,para.12.It seems that the ITLOS follows ICJ practice on this point.

B.Fact-finding in Non-appearance Cases in the Tribunal under Annex VII of UNCLOS

As a residual and compulsory binding decision-making mechanism,arbitration under the Annex VII of UNCLOS has been frequently used by disputing parties.Article 9 of Annex VII,the wording of which is identical with Article 28 ofStatute of the International Tribunal for the Law of the Sea,provides for default judgment in arbitration.Article 6 of Annex VII of UNCLOS clearly sets out the obligation of the parties to a dispute to cooperate with the arbitral tribunal,51This Article stipulates:The Parties to the dispute shall facilitate the work of the arbitral tribunal and,in particular,in accordance with their law and using all means at their disposal,shall:(a) provide it with all relevant documents,facilities and information;(b) enable it when necessary to call witnesses or experts and receive their evidence and to visit the localities to which the case relates.but Annex VII thereof does not appear to provide clear legal consequences for breach of this provision,which makes it unlikely in practice to prevent the parties to a dispute from being absent from cases or failing to provide documents and information to the arbitral tribunal.

There are only two non-appearance cases to date under Annex VII,theArctic Sunrisecase and the South China SeaArbitration.Given that this paper will later be devoted to the fact finding of the arbitral tribunal in the South China Sea Arbitration(hereinafter “the Tribunal”),the present analysis is limited to the approach of the arbitral tribunal in theArctic Sunrisecase.

The tribunal in theArctic Sunrisecase repeatedly emphasized that the assessment of evidence would be decided on the basis of “available evidence”.52The Arctic Sunrise Arbitration (Netherlands v. Russia),PCA Case N°.2014-02,Award on the Merits 2015,para.71,250 &372.The tribunal selected several pieces of evidence submitted to it as available primary sources,which are as follows:documents produced in the context of the administrative and criminal proceedings instituted against theArctic Sunriseand its crew in Russia,including charge sheets,search warrants,arrest orders,various petitions,and,notably,three witness interrogation reports by Russian Coast Guard officers dated 24 September 2013;30 video clips filmed from theArctic Sunriseand its rigid-hull inflatable boats (RHIBs),the Russian Coast Guard vesselLadoga,thePrirazlomnaya,and thePrirazlomnaya’s support vesselIskatel;over 1,000 photographs taken from theArctic Sunriseand its RHIBs;six audio-recordings made on theArctic Sunrise;the logbook of theArctic Sunrise;the relevant Russian laws and regulations etc.53Id.,para.71.In addition,Russia sent a note to the Netherlands in this case expressing its refusal to participate in the arbitration proceedings,and submitted a similar note to the ITLOS during the phase of provisional measures,and a further position paper to the arbitral tribunal and the Permanent Court of International Arbitration (PCA) on 7 August 2015.54The Tribunal appointed Ian Porter and Alan Larsen as experts to examine whether the amount of compensation claimed by the Netherlands for the losses suffered by the Arctic Sunrise and its crew is well founded.The arbitral tribunal in this case examined and analyzed the accuracy of the Dutch submissions,starting with the text of the materials and appointed experts and even called witnesses who gave written testimony on its own initiative,on the one hand,and also referred to Russian out-of-court documents to corroborate the factual basis of the claims made by the Netherlands.

To evaluate fact-finding in non-appearance cases,we look at evidence assessment of the tribunal in this case.In determining whether Russia had established a safety zone within the meaning of Article 50 of UNCLOS around thePrirazlomnayaoil platform,the Tribunal conducted a textual analysis of several Russian documents,such as the 1995Federal Law on the Continental Shelf,the 2015Amendment to the Code of Administrative Offences of the Russian Federation,Presidential Decree No.23 of 2013,Order of the Ministry of Transport No.186 of 2014,Order No.285 of 2013,Notice to Mariners No.51/2011 and Notice to Mariners 21/2014,within the context of relevant domestic laws and regulations.Based on the textual wording and legislative intent of these laws,regulations and documents,the tribunal found that Russia did not established a mandatory safety zone around the oil platform or ban navigation within 3 nautical miles of the oil platform.55Supra note 55,para.202-220.

In determining whether the pursuit of theArctic Sunriseby the Russian Coast Guard vesselLadogawas consistent with Article 111 of UNCLOS,it is critical to identify the location of theArctic Sunrisewhen pursuit commenced and whether theLadogahad issued a visual or auditory signal at a distance which enabled it to be seen or heard by theArctic Sunrisebefore the pursuit commenced.The Netherlands claimed that at 6:12 a.m.the rigid-hull inflatable boats belonging to theArctic Sunriseleft the 500-meter zone near thePrirazlombayaestablished by Russian law,and at 6:24 a.m.theLadogaissued the first stop order by Very High Frequency(VHF) Radio and SN Flag.The tribunal agreed with the Netherlands regarding the time the boats departed the zone,and noted that theLadogaindeed signaled toArctic Sunriseand its inflatable boats at 6:24 a.m.,but whether it was the first signal remains unclear.To determine this,the Tribunal examined other materials submitted by the Netherlands and found that Mr.Anatolievich Marchenkov,who was theLadogagunnery officer and the person radioing theArctic Sunrise,based on his interrogation by the Investigation Committee that the first order was given at or shortly after 6:13.In the report of the Federal Security Bureau Coast Guard Division for Murmansk Oblast,the time was recorded as 6:15.56Administrative Offense Report No.2109.623-13,FSB Coast Guard Division for Murmansk Oblast,24 September 2013 (Appendix 39).Having taken these different elements into account,the Tribunal finally found it was difficult to determine the exact time the first stop order was issued.57Supra note 52,para.265-266.

What is unique about this case is that,despite its persistent refusal to participate in the case,Russia had initiated domestic law proceedings to impose penalties on theArctic Sunrisepersonnel,for whom Greenpeace appointed attorneys,before the case was filed in arbitration.During the domestic law proceedings,the attorneys had access to and obtained the various domestic laws and regulations and evidentiary materials on which Russia based its penalties,which were submitted to the arbitral tribunal established under Annex VII of the UNCLOS (hereinafter “the Annex VII arbitral tribunal”) in the subsequent arbitration proceedings.This also facilitated to some extent the fact finding work of the arbitral tribunal and mitigated the impact caused by Russia’s absence from the hearing.

Judging from the limited practice of the Annex VII arbitral tribunal,the“preponderance of the evidence standard” could not be applied due to the nonappearance of a party.

IV.The South China Sea Arbitration

As mentioned earlier,in current dispute settlement procedures between States where a party is not present,the standard of proof and evidence is not clear,the dispute settlement body enjoys considerable discretion in the determination of facts and can decide whether to summon witnesses,appoint experts,collect evidence proactively,or conduct field survey to find the facts.In practice,the court and the tribunal tend to review the materials submitted by the present parties from the aspects of text wording,especially whether the materials can be verified with each other,and meanwhile ask appropriate oral and written questions to fulfill the “factual basis” requirement.As the most important case with one party absent in the court in international dispute settlement practices,the arbitration case between Philippines and China over their maritime disputes in the South China Sea is faced with unprecedented challenges in the process of fact-finding,not just because the absent party is a permanent member of the United Nations Security Council,but more importantly,the facts involved in the case are extremely complex.The arbitration claims of the present party involve the core national interests of China and the Philippines,including territorial and maritime rights,and the Philippines submitted thousands of pages of evidence to the Tribunal.

The procedural rules established by the Tribunal in this case were relatively general in their findings of fact,58In the Matter of An Arbitration between the Republic of the Philippine and the People’s Republic of China,Rules of Procedure,Art.22.which were basically consistent with the provisions of the Annex VII arbitral tribunal in other cases.In the course of the hearings,the Tribunal,in its partial decision,followed the “best available evidence”standard set forth by the ITLOS in indicating provisional measures,59In the Matter of An Arbitration between the Republic of the Philippine and the People’s Republic of China,PCA Case N° 2013-19,Award,para.302,306,511 &1179.and further noted that in order to meet the “well found in fact and law” standard,Article 9 of Annex VII required the Tribunal to take measures to examine the Philippine submissions and to gather additional evidentiary materials on its own initiative.60Id.,para.131.The aforesaid measures included questioning the Philippines’ expert witnesses at the hearing;requesting supplementary submissions from the Philippines on various issues such as whether Nansha islands and reefs could give rise to an EEZ and continental shelf;appointing two experts,Grant Boyes and Gurpreet Singhota,under Article 24 of the Arbitration Rules of the present case to submit expert reports on the geo-hydrology issues and navigation of Nansha islands and reefs,and requesting Mr.Boyes to examine the geo-hydrology information submitted by the Philippines;appointing a team of experts consisting of Sebastian Fetzer to submit a report on the ecology of the islands and reefs;taking the initiative to retrieve the hydrographic surveys of the South China Sea by the British and Japanese navies before 1945,as well as archival materials related to the French occupation of the Xisha Islands in the 1930s;accepting the “amicus curiae” document submitted by a academic society of China’s Taiwan region on the status of Taiping Island and requesting the parties to the dispute to comment on it,etc.Apart from its failure to conduct a field visit,the Tribunal formally took almost all the fact-finding measures it could,seemingly to avoid,as far as possible,the direct acceptance of the Philippines’ unilateral view.As noted earlier,in addition to taking measures to play a positive role in the fact-finding of the proceedings where one party doesn’t appear before the court,the dispute settlement body also needs to examine the materials submitted by the parties appearing before the court in terms of,inter alia,the textual wording,paying particular attention to whether the materials corroborate each other.In view of the huge number of facts involved in this case and the limited space of this paper,the following is an objective analysis and comment on the Tribunal’s fact-finding practices based on the evidentiary materials concerning the content and nature of China’s South China Sea claims in the substantive decision of the case.

The first group of evidence is diplomatic documents or correspondences of the Chinese government including following items:(1) Two diplomatic notes to the UN Secretary General dated 7 May 2009,for the purpose of objecting to the joint submission to the UN Commission on Limits of Continental Shelf by Malaysia and Vietnam,and to the separate submission of Vietnam;(2) Note Verbales objecting to item (1) by Philippines,Vietnam,Indonesia and Malaysia;(3) Responsive Note Verbale to the objections in item (2) dated 14 April 2011;(4) Note Verbale of Republic of China dated 29 September 1932 to France,which acknowledged that its claims in the South China Sea extended no farther south than the Xisha Islands since the Xisha Islands lies 145 nautical miles from Hainan Island,and form the southernmost part of Chinese territory;(5) The Philippines’ protest and China’s response to China’s modification of the dashed line in November 2013,which added a tenth segment line to the east of Taiwan Island;(6) Note dated 21 June 2011 from the Deputy Director-General of the Department of Asian Affairs of the Ministry of Foreign Affairs of the People’s Republic of China addressed to the Philippines;(7) China’s protest against the Philippines’ public bidding for the exploitation of oil and gas blocks;(8) Statements by Foreign Ministry spokespersons JIANG Yu and HONG Lei;(9) Statements by Chinese Foreign Ministry Spokespersons HONG Lei and HUA Chunying at press conferences on 9 December 2014,30 May and 29 June 2015;(10) Diplomatic Note dated 6 July 2015 and official statement dated 30 October 2015 from the Ministry of Foreign Affairs of the People’s Republic of China addressed to the Philippines;(11)Position paper on the case issued by the Ministry of Foreign Affairs on 7 December 2014;(12) Remarks by Chinese President XI Jinping at the Joint Press Conference with U.S.President Barack Obama on 25 September 2015,and speeches by Vice Foreign Minister ZHANG Yesui on 27 October 2015,by the spokesperson of the Ministry of National Defense on 29 October 2015,and by the spokesperson of the Ministry of Foreign Affairs on 5 November 2015,etc.,all of which referred to China’s guarantee of freedom of navigation in the South China Sea;(13) The objections of the Philippines to the inclusion of the area encompassed by the dotted line within the scope of China’s 2012Regulation on the Administration of Ocean Observation and Forecasting,and China’s responsive document thereto;(14)Vietnam’s protest and the Philippines’ request for clarification onRegulation on the Administration of Coastal Border Security for China’s Hainan Province (2012 Revision),which requires consent by the provincial authorities for entry by any foreign vessel into any waters in the South China Sea under Chinese jurisdiction;(15)Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea of the People’s Republic of China,dated on 15 May 1996;

The second group of evidence is Chinese domestic laws,regulations,measures and other items listed below:(16)Statement of the Government of the People’s Republic of China on China’s Territorial Seaissued on 4 September 1958,the content of which identifies the Nansha Islands as separated from Chinese mainland and its coastal islands by the high sea;(17) 1992Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone;(18) Article 14 of the 1998Law on the Exclusive Economic Zone and the Continental Shelf of the People’s Republic of China,which is the first time the Chinese Government referred to its historic rights according to the knowledge of the Philippines;(19) In 2002,China requested permission from the Philippines to carry out its activities in what it called “the Exclusive Economic Zone of the Republic of the Philippines” only on the Philippine side of the dotted line,but requested no permission to operate on its side of the dashed line,even though much of that maritime space,too,was located within the Philippines’ EEZ;(20) the Chinese Government’s imprint of the image of the nine-dash line in the pages of Chinese e-passports that subsequently gave rise to the protest from the Philippines;(21) China National Offshore Oil Corporation (CNOOC),a China state-owned enterprise,published a map indicating the locations of partially open blocks in South China Sea.

The third group of evidence is Chinese official maps listed below:(22) Chinese official map published in 1948,the content of which claim sovereignty over islands within the waters of the nine-dash line;(23) Officially published maps of China between 1950 and 1956.

Scholarly literature is the main content of the fourth group of evidence,including:(24) the Deputy Director of China’s National Institute for South China Sea Studies,LIU Feng,explained that China claims sovereign rights,including rights to oil and gas extraction and to fishing,in all the waters within the nine-dash line;(25) a paper by GAO Zhiguo and JIA Bingbing,which evaluated Chinese domestic law as a legal basis of the dotted line;(26) other literature showing the southern part of China’s territory extending to Hainan Province in the Qing Dynasty;(27) a paper by GAO Zhiguo published in 1994,which defined the nature of the nine-dash line as a sovereignty claim to the islands within;(28) papers by ZOU Keyuan,LI Jinming and LI Dexia on the topics of Chinese claim on the South China Sea.

The fifth group of evidence comprises press information and reports from different origins,such as:(29) news reports on China’s incorporation of theHaixun 21marine surveillance ship into the Hainan Maritime Safety Administration to strengthen its patrolling activities in the nearly 2 million square nautical miles of the South China Sea.

Other evidence includes:(30) a report issued by the U.S.Department of State on 5 December 2014 analyzing China’s claim to the South China Sea;(31) the Expert Report submitted by Dr.Lindsay Parson with the conclusion that the Spratly Islands would be unlikely to support a claim beyond 200 nautical miles and that the Paracel Islands would be unlikely to significantly extend China’s maritime areas beyond a continental shelf that could be claimed from Hainan Province.

A.Evidence the SCSA Tribunal Focused on in the Merits

In determining China’s claims in the South China Sea,the Tribunal first examined the above-mentioned diplomatic documents and domestic legislation of China,plus an additional examination of the statement made by the Director General of the Department of Treaty and Law of the Ministry of Foreign Affairs at a media briefing on the South China Sea Arbitration initiated by the Philippines on 12 May 2016,61Remarks by XU Hong,Director-General of the Department of Treaty and Law of the Ministry of Foreign Affairs,on the South China Sea Arbitration Initiated by the Republic of the Philippines,IPC (13 May 2016),http://ipc.fmprc.gov.cn/chn/hdjc/201605/t20160513_785702.htm.(in Chinese) Due to time constraints,this material was not included in the list of evidence submitted by the Philippines.and found it difficult to determine the content and nature of China’s claims from these documents.

As regards to the item (7),China objected to “GSEC101” since China has claimed indisputable sovereignty over the Nansha Islands and its adjacent waters since ancient time,and objected to the Service Contract for Block 58 because it is located deep within China’s dotted line,and objected to the Philippines’ Area 3 and Area 4 petroleum blocks because they are situated in waters that China claims it has historic title,including sovereign rights and jurisdiction.The framing of the objections above strongly indicate that China considers its rights with respect to petroleum resources to stem from historic rights,despite the possibility that China’s claims were based on a theory of entitlement to continental shelf rights pursuant to the UNCLOS.

For items (12) and (15),the SCSA Tribunal found the legal status of waters encompassed by the dotted line is not territorial waters of inner waters since China continuously assured freedom of navigation and overflight in the South China Sea and drew the baseline of Hainan Province and Xisha Islands;otherwise China should have drawn the baseline of Nansha Islands in the past decades.

For item (21),it concluded that “even assuming the maximum possible claim to entitlements China could make under the UNCLOS,China’s authority to issue the petroleum blocks in question cannot be based solely upon entitlements derived from the Convention,since the western portions of at least one of the blocks lie beyond 200 nautical miles from any feature in the South China Sea claimed by China”.62Supra note 59,para.208-209,212-213.

In addition to these three pieces of evidence,the Tribunal has also,on its own initiative,included in its examination of China’s claims in the South China Sea materials used by the Philippines to substantiate claim No.8:The Fisheries Administration Bureau of South China Sea Region of the Ministry of Agriculture,China issued a fishing moratorium order in 2012,which applies to waters under Chinese jurisdiction up to 12 degrees north latitude and the boundary between Guangdong and Fujian provinces,while according to Xinhua News Agency,the order applies to most of the South China Sea,including the Huangyan Island.63Announcement of the Ministry of Agriculture on the adjustment of the fishing moratorium,Nongyebu [2012] No.1 (in Chinese);Xinhua News Agency,Summer fishing moratorium Starts in the South China Sea,GovCN (16 May 2012),http://www.gov.cn/jrzg/2012-05/16/content_2138778.htm.(in Chinese)The tribunal believes that if China claims that all marine features,including those of the Huangyan Island,can have EEZ,then most of the area north of latitude 12 degrees north falls within the scope of this claim.Considering the above three pieces of evidence,it can be concluded that China’s claim to living and non-living resources within the Dotted Line is based on historic rights independent of the Convention.China does not consider the waters within the Dotted Line to be territorial seas or internal waters,apart from territorial waters that may arise from the islands.64Supra note 59,para.211,214.

B.Observations

In response to the above reasoning and findings of the Tribunal,we can draw the following conclusions:

First,the Tribunal mainly referred to the domestic legislation and measures of China,including out-of-court documents,a great number of diplomatic documents and statements and maps,and other evidence of higher probative value,while basically not citing less probative materials such as scholars’ views and media reports,which is basically in line with the consistent practice of international dispute settlement bodies in proceedings where one party doesn’t appear before the court.

Second,compared to the ICJ,the ITLOS,and the arbitral tribunal for theArctic Sunrisecase,the Tribunal to the present case was more proactive in fact finding,not only taking the initiative to refer to the Chinese government’s out-ofcourt documents and collect some evidence not submitted by the Philippines,but also appointing experts and formally accepting the amicus curiae document from the China’s Taiwan society in order to fulfill the requirement of “well found in fact”.

Third,the Tribunal’s analysis of the above-mentioned evidence was not reasonable and even somewhat out of context.In terms of Evidence (7),China lodged a total of three protests:the first one was against Area 101,which China did mention as being located in the adjacent waters of Nansha Islands,yet followed by an explanation that China had sent maritime surveillance vessels to the area to prevent operations because the Philippines’ actions infringed on China’s sovereignty and sovereign rights;65Sreenivasa Rao Pemmaraju,The South China Sea Arbitration (The Philippines v.China):Assessment of the Award on Jurisdiction and Admissibility,Chinese Journal of International Law,Vol.15,p.303-305 (2016);Republic of the Philippines,to the Secretary of Foreign Affairs (10 March 2011)，Memorial of the Philippines,Vol.IV,Annex 70.the second was against Contract Areas 14,54,58 and 63,which China did mention as being located within the dashed line,yet followed by an explanation that the Philippines’ actions infringed on China’s sovereignty and sovereign rights in those areas;66Memorandum from the Undersecretary for Special and Ocean Concerns,Department of Foreign Affairs,Republic of the Philippines,to the Secretary of Foreign Affairs of the Republic of the Philippines,30 July 2010,Memorial of the Philippines,Vol.IV,Annex 63.and the third was against Areas 3 and 4,as these areas are located in waters where China has historic ownership rights,including sovereign rights and jurisdiction.And the third protest was the only instance among the three protests that the term “historic” was used.In its substantive decision,the Tribunal cited only the content of these protests,but not China’s subsequent explanations and clarifications,and accordingly concluded that China’s several protests showed that its rights to oil resources derived from historic rights.In fact,however,China’s protests are based not just on sovereign rights,and also on its sovereignty over the area under exploitation.

Fourth,the Tribunal failed to take sufficient notice of the contradictions between the evidentiary materials submitted by the Philippines.According to the 1958Declaration on China’s Territorial Sea,the breadth of China’s territorial sea is 12 nautical miles,and this provision applies to all territories of the People’s Republic of China,including the Chinese mainland and its coastal islands,as well as China’s Taiwan Island and its surrounding islands,the Penghu Islands,the Dongsha Islands,the Xisha Islands,the Zhongsha Islands,the Nansha Islands and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas.67State Oceanic Administration,People's Republic of China,Selected Marine Laws and Regulations of the People’s Republic of China (4th edition),China Ocean Press,2021,p.3.(in Chinese)Article 2 of the 1992Law on the Territorial Sea and the Contiguous Zonefurther defines the land territory of China,which includes the Chinese mainland and its coastal islands,Taiwan Island and all islands appertaining thereto including the Diaoyu Islands,the Penghu Islands,the Dongsha Islands,the Xisha Islands,the Zhongsha Islands and the Nansha Islands,as well as all the other islands belonging to the People’s Republic of China.68United Nations,Secretary-General,Multilateral Treaties Deposited with the Secretary-General,Vol.III,Part I,Chapters XXII to XXIX,and Part II,ST/LEG/SER.E/26,2009.The evidence makes it very clear that China claims sovereignty over each of the four major islands of the Dongsha,Xisha,Zhongsha and Nansha as a whole,and that these islands can each claim an EEZ and continental shelf in accordance with UNCLOS.This conclusion can be reached by analyzing the text of the above evidence directly through the method of textual interpretation.69LUO Huanxin,On the Illegal Treatment of Land Rights Sources in the Substantive Award of the South China Sea Arbitration, Chinese Review of International Law,Vol.3:5,p.26(2016).(in Chinese)Only if China’s territorial claims to these islands are denied as a whole does the question arise as to whether individual islands and reefs of these islands have rights under UNCLOS.Items (7),(15) and(21) of the evidence,which the Philippines submitted together,were founded on China’s claims to an EEZ and continental shelf based on individual islands and reefs of the four islands,which is a complete distortion of China’s claims and should not be regarded as the “best available evidence”.Instead of making efforts to reconcile the contradictions among these pieces of evidence,the arbitral tribunal completely accepted the Philippines’ distorted interpretation,ignored China’s claims,and did not question and bombard the Philippines’ attorney on such obvious contradictions during the hearing.The Tribunal,if correctly understanding China’s claims,would have found that the different explanatory and descriptive wording used by China in the three protests,in response to the different locations of the areas,indicates precisely that China may have different bases of rights to oil and gas resources in different areas of the South China Sea,and that different oil and gas areas may lie in the EEZs and continental shelves claimed by China in the Nansha or Zhongsha Islands as a whole,or in waters over which China claims historic rights.After the announcement of the substantive decision in the case,the Chinese government issued theStatement of the Government of the People’s Republic of China on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea,clearly indicating the dual nature of China’s claims in the South China Sea in terms of legal basis:claiming both the EEZ and continental shelf for the islands in accordance with UNCLOS,as well as its historic rights.70The statement noted that territorial sovereignty and maritime rights and interests in the South China Sea include:China’s sovereignty over the islands in the South China Sea,including the Dongsha Islands,Xisha Islands,Zhongsha Islands and Nansha Islands;China’s possession of internal waters,territorial waters and contiguous zone in the islands in the South China Sea;China’s possession of an EEZ and continental shelf in the islands in the South China Sea;and China’s historical rights in the South China Sea.Statement of the Government of the People’s Republic of China on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea,GovCN (12 July 2016),http://www.gov.cn/xinwen/2016-07/12/content_5090631.htm (in Chinese).However,the statement still does not seem to clarify the content and scope of China’s historical rights in the South China Sea.Therefore,the above finding of the Tribunal is obviously erroneous and can hardly meet the requirement of “well found in fact”.

V.Conclusion

As things stand,“the claim is well founded in fact” has constituted a fact finding requirement for the inter-State dispute settlement bodies in proceedings where one party doesn’t appear before the court.As a universal international judicial body,the ICJ tends to prudently treat the competency of evidence and probative value of the materials submitted by the party appearing before the court on a case-by-case basis,and to interpret the texts of the materials in a strict manner,with emphasis on whether the materials provided by the party appearing before the court can corroborate each other.On this basis,specialized international dispute settlement bodies such as the ITLOS and the Annex VII arbitral tribunal have,in practice,further proposed the “best available evidence” as one of the specific methods to fulfill the requirement of “the claim is well founded in fact”.Despite these requirements,dispute settlement bodies still enjoy a wide margin of discretion and can judge in individual cases whether “the claim is well founded in fact” on a case-by-case basis.In the absence of a party,the standard of proof required by “the claim is well founded in fact” should obviously not be“preponderance of the evidence standard”.However,there is still no certainty as to the exact content of such standard of proof.Despite the stricter standard of proof in the proceedings where one party doesn’t appear before the court,no special rules of evidence law have yet been developed in such proceedings,but rather the general international law rules of evidence law still apply,with focus on the examination of the truthfulness,relevance and legality of the evidence.However,due to the lack of proof and cross-examination by the party not appearing before the court in such proceedings,the examination no longer focuses on the confrontation of evidence between the parties,but rather on whether the materials submitted by the party appearing before the court corroborate each other,as well as with those obtained by the dispute settlement body on its own initiative,and whether there are any contradictions.It is within the discretion of the dispute settlement body whether to obtain the materials on its own initiative and what means to use to obtain them.Practically,the ICJ tends to be conservative on this issue,while in the case of the ITLOS and the Annex VII arbitral tribunal,it is difficult to draw general conclusions on their attitudes in this regard at present due to the relatively small number of cases of non-appearance of a party before them.

The fact-finding task of the dispute settlement body in the proceedings where one party doesn’t appear before the court is more onerous than in with the proceedings with appearance of both parties,which is dictated by the nonappearance strategy of one of the parties to the dispute.Therefore,in response to the complex issue of fact finding,an effective way is to emphasize and call on the parties to appear before the court to cooperate with the work of the dispute settlement body,further improve the persuasiveness of the decision,and take measures to alleviate the practical concerns of the party who intends not to appear before the court.Moreover,the dispute settlement body should take the initiative to obtain evidentiary materials through field investigation,appointment of experts,consultation with international organizations related to the facts and background of the case,acceptance of amicus curiae opinions,etc.,so as to better perform its dispute settlement function.On the other hand,however,the party not appearing before the court should be subject to the possible result of losing the lawsuit and the subsequent political,legal and moral risks caused by the behavior of not appearing before the court.The dispute settlement body cannot supersede the position of the party not appearing before the court,nor can it thereby bring procedural disadvantages for the party appearing before the court,making it possible for the absent party to benefit de facto from the act of non-appearance.The practice of proactively obtaining evidential materials enriches the sources of evidence and may indeed contribute to the performance of the functions of the dispute settlement body.However,whether the dispute settlement body truly performs the fact-finding function still depends on the degree of prudence in its treatment of evidential materials,the accuracy of law application and the precision of dispute identification.In the South China Sea Arbitration initiated by the Philippines,therewas a large deviation in the Tribunal’s fact finding,which is actually related to its definition of the nature of the dispute—the Tribunal attempted to separate the dispute over sovereignty and delimitation of maritime features from the maritime rights arising from the maritime features.However,the evidentiary materials to prove sovereignty and support maritime rights arising from maritime features are objectively inseparable.As Rao,President of the Institute of International Law,has stated,“The question however is not whether there is more than one aspect of the matter on which the Parties are in dispute but whether the different aspects or dimensions of the same dispute could be artificially broken down into different disputes for the purpose of jurisdiction.Any such attempt is highly fraught with the risk...the attempt to separate issues and evidence concerning historic titles might,in the end,turn out to be a futile exercise.”71Sreenivasa Rao Pemmaraju,The South China Sea Arbitration (The Philippines v.China):Assessment of the Award on Jurisdiction and Admissibility,Chinese Journal of International Law,Vol.15:2,p.303-305 (2016).

The difficulty of fact-finding in the proceedings where one party doesn’t appear before the court is also reflected in the writing of the decision of the dispute resolution body.The dispute resolution body,given its great discretion in finding facts,can choose which evidentiary materials to present in a decision without the need to present the entire process of finding facts to the public.In fact,however,the unpresented evidentiary material may also have a decisive impact on the finding of facts.The adjudicator,albeit the unnecessity to disclose the entire fact-finding process based on the free evaluation of the evidence,should at least reflect the important process of free evaluation in the decision in a certain form to strengthen the reasoning and persuasive power of the decision.