South China Sea Arbitration: Non-appearance and the Guarantee of Justice
In the South China Sea Arbitration case, the tribunal rendered a final award without the appearance of China. A default decision is permitted under current international law. However, it is meaningful to discuss whether it can guarantee justice.
China’s non-appearance has caused difficulties at the tribunal. One of the difficulties is the finding of facts. As revealed in the final award, the tribunal had made an effort to satisfy itself of its jurisdiction and the legal and factual foundations of the Philippines’ claims through “obtaining independent expert input, reviewing other materials in the public domain, and inviting further comments from the Parties on those sources”.
A default decision is no more than a domestic analogy in international law. In the event that one party is absent, Article 9 of Annex VII of the Law of the Sea Convention provides that the court can rule in default as long as it satisfies itself that it has jurisdiction and the claim is well founded in fact and law. The tribunal had made an effort to satisfy itself in this case.
Undoubtedly, the default decision is permitted under current international law. However, the spirit of academia constantly demands that a researcher shall never endorse a rule even lex lata without reasoning, and instead, he or she shall have the courage to discuss and advocate for lex ferenda. Hence, it is necessary and meaningful to examine the issue whether a default decision can guarantee justice in international law.
According to Michael Reisman, the decisions of international courts rely nearly exclusively on the parties in a dispute gathering information and providing evidence, since the parties are more able and willing to do that. Ideally, the accuracy of the facts are achieved through the cross examination conducted by each party before the court. The justice of the decision is guaranteed since the accuracy of its factual basis has been achieved.
Without the participation of one party, the discourse of arbitration is under the control of the tribunal and the appearing party. It is more like hearing a one-sided story or single-party arbitration. No one voices the interests of the non-appearing party. This is dangerous for justice. Judge Schwebel expressed the same doubt in his dissenting opinion of the Nicaragua v United States case in which the United States refused to appear at the merit trial stage. In his view, the establishment of truth is the foundation of a judicial decision, and government statements made before the court and made outside of it are not the same. It is because the factual accuracy largely depends on the probity and the cross examination of the parties. Without the presence of both parties, the factual accuracy cannot be achieved and thus justice cannot be guaranteed.
Furthermore, given the important national interests involved in international law cases, a default decision may be disproportionate to the act of non-appearance. The logic of a default decision is that the non-appearing party undertakes the risk of receiving an unfavourable decision. The risk is a kind of “punishment” for the non-appearing party. However, this “punishment” may be disproportionate to the act of non-appearance since it may deprive a nation of vital interests.
To address this problem, the introduction of a “duty to cooperate”, which is under development in international law, into international judicial regimes may be a good alternative to the default decision. A tribunal can ask the non-appearing party to undertake responsibility on the basis of its failure to comply with its duty to cooperate in the proceedings. For example, this kind of responsibility may take the form of a monetary penalty. On the one hand, this alternative approach is not only a better guarantee of justice, but it is also more proportionate than totally depriving the non-appearing party’s chance of defending its vital national interests before a court or tribunal. On the other hand, it can effectively procure the participation of parties. Nevertheless, the topic of the reform of default decisions in international law deserves more attention and further elaboration.