182
tions on the matters before it”.
62
Indeed, both before, during, and after the arbitration, various Chinese authorities continuously commented on the proceedings, and
the legal and political issues relating to the South China Sea. Remarkable also was
the continuous interest from Chinese academics in the issue. An endless flow of
academic publications, all of which—without a single exception!—defended the
formal Chinese position, were published. In its memorial, the Philippines already
directed the Tribunal to the “academic literature that includes the views of individuals closely associated with the Chinese authorities”.
63
However, the Tribunal did not
consider these articles as representing the views of the Chinese government. This is
for good reason, because formally academics function independently of the government. In practice, this might be different, of course.
64
The Philippines did appear to
encourage the Chinese authorities and its scholars to continue issuing these statements and to keep publishing these scholarly articles and books, to assist the Arbitral
Tribunal in settling the dispute. The Philippines reminded the Tribunal, and indirectly also China, that “nothing prevents China from informally presenting information pertaining to relevant questions of fact or law”.
65
Such statements could, at least
to some extent, avoid that “the Philippines is in the position of having to guess what
China’s arguments might be and formulate arguments for both States”.
66
In its memorial, the Philippines already predicted that the Arbitral Tribunal could
expect a constant flow of statements from the Chinese government from which the
Chinese legal position could without much effort be derived. And this prediction
turned out to be correct. “Nevertheless”, continued the memorial,
The Philippines recognizes that China’s non-appearance does impose a special burden on
the Tribunal, which ‘must satisfy itself not only that it has jurisdiction over the dispute but
also that the claim is well founded in fact and law’ [and for this reason] the Philippines
wishes to assist the Tribunal as far as possible, and to that end has formulated its arguments
in the Memorial with this in mind, seeking to take into account the arguments that China
might have raised if it had elected to appear.
67
This Philippines’ strategy to humbly offer the Tribunal its services as its factfinder, law clerk, assistant, etc., proved to be a very effective one.
The most important statement issued by China was its position paper.
68
The
Position Paper was formally “intended to demonstrate that the arbitral tribunal
established at the request of the Philippines […] does not have jurisdiction over this
case”. This is an important difference with the Russian notes verbales, which were
62 Ibidem, para. 1.23.
63 Ibidem, para. 1.23.
64 See in particular Yee (2015).
65 Memorial of the Philippines, Vol. 1, para. 7.41.
66 Ibidem, para. 7.42.
67 Ibidem, para. 1.24.
68 Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction
in the South China Sea Arbitration Initiated by the Republic of the Philippines, 7 December 2014,
published on the website of the Ministry, at http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/
t1217147.shtml.
O. Spijkers
tions on the matters before it”.
62
Indeed, both before, during, and after the arbitration, various Chinese authorities continuously commented on the proceedings, and
the legal and political issues relating to the South China Sea. Remarkable also was
the continuous interest from Chinese academics in the issue. An endless flow of
academic publications, all of which—without a single exception!—defended the
formal Chinese position, were published. In its memorial, the Philippines already
directed the Tribunal to the “academic literature that includes the views of individuals closely associated with the Chinese authorities”.
63
However, the Tribunal did not
consider these articles as representing the views of the Chinese government. This is
for good reason, because formally academics function independently of the government. In practice, this might be different, of course.
64
The Philippines did appear to
encourage the Chinese authorities and its scholars to continue issuing these statements and to keep publishing these scholarly articles and books, to assist the Arbitral
Tribunal in settling the dispute. The Philippines reminded the Tribunal, and indirectly also China, that “nothing prevents China from informally presenting information pertaining to relevant questions of fact or law”.
65
Such statements could, at least
to some extent, avoid that “the Philippines is in the position of having to guess what
China’s arguments might be and formulate arguments for both States”.
66
In its memorial, the Philippines already predicted that the Arbitral Tribunal could
expect a constant flow of statements from the Chinese government from which the
Chinese legal position could without much effort be derived. And this prediction
turned out to be correct. “Nevertheless”, continued the memorial,
The Philippines recognizes that China’s non-appearance does impose a special burden on
the Tribunal, which ‘must satisfy itself not only that it has jurisdiction over the dispute but
also that the claim is well founded in fact and law’ [and for this reason] the Philippines
wishes to assist the Tribunal as far as possible, and to that end has formulated its arguments
in the Memorial with this in mind, seeking to take into account the arguments that China
might have raised if it had elected to appear.
67
This Philippines’ strategy to humbly offer the Tribunal its services as its factfinder, law clerk, assistant, etc., proved to be a very effective one.
The most important statement issued by China was its position paper.
68
The
Position Paper was formally “intended to demonstrate that the arbitral tribunal
established at the request of the Philippines […] does not have jurisdiction over this
case”. This is an important difference with the Russian notes verbales, which were
62 Ibidem, para. 1.23.
63 Ibidem, para. 1.23.
64 See in particular Yee (2015).
65 Memorial of the Philippines, Vol. 1, para. 7.41.
66 Ibidem, para. 7.42.
67 Ibidem, para. 1.24.
68 Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction
in the South China Sea Arbitration Initiated by the Republic of the Philippines, 7 December 2014,
published on the website of the Ministry, at http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/
t1217147.shtml.
O. Spijkers