China wants a seat in an international tribunal for maritime disputes. The U.S. is against it
China has nominated a Chinese candidate for a judge’s position in an international tribunal that settles maritime disputes. But the U.S. is seeking to stop China, arguing that Beijing has flouted international sea laws in the disputed South China Sea.
“Electing a PRC official to this body is like hiring an arsonist to help run the Fire Department,” said David Stilwell, U.S. assistant secretary of state for East Asian and Pacific affairs, at an
online forum held by think tank Center for Strategic and International Studies last month.
PRC refers to the People’s Republic of China, the official name of the country.
“We urge all countries involved in the upcoming International Tribunal election to carefully assess the credentials of the PRC candidate and consider whether a PRC judge on the Tribunal will help or hinder international maritime law. Given Beijing’s record, the answer should be clear,” he added.
The International Tribunal for the Law of the Sea is expected to hold an election in August or September to select seven judges to serve a nine-year term. All 168 signatories of the United Nations Convention on the Law of the Sea, or UNCLOS, will cast their votes in the election.
Who owns the South China Sea?
The UNCLOS is an international treaty that outlines nations’ rights and responsibilities in the world’s ocean space. It forms the basis for how international courts, such as the International Tribunal for the Law of the Sea,
settle maritime disputes.
In 2016, a tribunal at the Permanent Court of Arbitration
dismissed China’s claims of nearly 90% of the South China Sea as baseless according to UNCLOS principles. China, which negotiated and ratified the convention, refused to accept or recognize the ruling.
The next time a China Coast Guard ship plays chicken with an oil rig off Vietnam or a flotilla of Chinese fishing boats appears in Indonesian waters, the United States will likely speak up more forcefully to decry the illegal action.
Center for Strategic and International Studies
Meanwhile, the U.S
. is not allowed to vote in the tribunal election because it has not ratified the convention. That’s a point raised by Hua Chunying, a spokeswoman at China’s foreign ministry, who disputed Stilwell’s arguments.
“So far, the United States has not ratified the UNCLOS, but has always posed as a defender of it,” Hua said at a regular media conference by the ministry last month after she was asked for her comments.
“Judges of the Tribunal perform their duties in their personal capacity,” she said, defending her country’s candidate as one who’s “well versed in international law and the law of the sea,” according to an
official transcript released on the ministry’s website.
The U.S. gets tougher on China
It’s not the first time that China has put up a candidate for the election of judges for the International Tribunal for the Law of the Sea. In fact, three Chinese judges have served at the judicial body since the first election was held in 1996, according to the tribunal’s website.
But the U.S. brought attention to China’s latest nomination as
it toughened its stance against continued Chinese aggression in the South China Sea, a resource-rich waterway that’s a vital shipping lane for global trade.
The U.S. is ‘not backing down’ on the South China Sea: CSIS
Stilwell’s comments at the CSIS forum came a day after U.S. Secretary of State
Mike Pompeo called
China’s claims to “offshore resources” in the South China Sea “completely unlawful.”
The U.S. has long promoted freedom of navigation by air and sea across the waterway. However, China claims nearly all of South China Sea, an area encompassing about 1.4 million square miles, that stretches from Singapore to the Straits of Taiwan.
China backs up its
claims and activities in the sea — including drilling for oil and creating artificial islands — with a vague “nine-dash line” that it said delineated Chinese historical territory in olden maps. The nine-dash line, which overlaps with territorial claims by several parties, was dismissed in the 2016 tribunal ruling.
According to UNCLOS, coastal states have sovereign rights to national resources within 200 nautical miles from their shores, and can conduct certain economic activities and maritime research within that area. The area marked out by the nine-dash line stretches far beyond 200 nautical miles from China’s coast.
Analysts said a tougher stance by Washington against Beijing in the South China Sea could encourage other claimants to be more assertive toward Beijing. Many of the territorial claimants are smaller Southeast Asian states such as Vietnam and the Philippines, which have strong economic ties to China.
“The next time a China Coast Guard ship plays chicken with an oil rig off Vietnam or a flotilla of Chinese fishing boats appears in Indonesian waters, the United States will likely speak up more forcefully to decry the illegal action,” said Greg Poling, senior fellow for Southeast Asia and director of the Asia Maritime Transparency Initiative at CSIS.
“And that will have a proportionately greater effect on China’s international reputation.”
China Wins Seat at International Tribunal on Law of the Sea
China’s candidate has won an election to be a judge on a key United Nations-affiliated agency responsible for hearing cases concerning the Law of the Sea, despite U.S. opposition to what it views as Beijing’s growing influence in international organizations.
Duan Jielong, the current Chinese ambassador to Hungary and a law school graduate of Columbia University and China Foreign Affairs University, will sit as one of 21 judges at the International Tribunal on the Law of the Sea (ITLOS). It is the international legal body responsible for adjudicating disputes related to the United Nations Convention on the Law of the Sea, or UNCLOS.
Duan was nominated by China to represent Asia and won his seat unopposed on Monday, with 149 out of 166 votes gathered among member-states of the tribunal. Seventeen member-states abstained.
“China's success in the election illustrates once again that [a] certain country's suppression of the Chinese nominee out of selfish interest is both unwelcome and futile,” China’s Foreign Ministry Spokesperson Zhao Lijian said at his daily conference in Beijing, alluding to the United States’ last-minute effort to stop China’s pick from winning.
At a think tank conference on the South China Sea last month, David Stilwell, the top U.S. diplomat for East Asian and Pacific Affairs, said the U.S. was concerned about China’s nomination of its judge to ITLOS and urged other countries against voting for the candidate.
U.S. Secretary of State Mike Pompeo echoed these concerns at a hearing in the U.S. Senate on July 30, where he requested funding for a special team at the State Department that would push back on China’s growing domination of UN agencies and international organizations.
“It’s not just the leaders that matter at these UN organizations. They have big bureaucracies underneath them. And we are sadly inadequately represented at every level inside of these international bodies, and it matters,” Pompeo told the Senate Foreign Relations Committee.
While Pompeo championed the successful U.S. effort to stop China’s preferred pick from winning leadership of another U.N. agency, the World Intellectual Property Organization – the winner was from Singapore -- the U.S. had little ability to replicate that in the case of ITLOS.
Since the U.S. has never ratified the law of the sea convention, UNCLOS, it is not permitted to submit candidates for any positions in ITLOS. No other candidates from Asian countries were put forward to compete against China’s pick.
Meanwhile, Beijing is seeking to displace America's leadership in the UN, said Kristine Lee, an Associate Fellow at the Washington, D.C.-based Center for a New American Security. "And it's doing this first and foremost through its personnel."
"It's mapped out strategically important Specialized Agency elections and has done the diplomatic legwork to get Chinese officials elected to these positions," she said, adding, "This is problematic because the [Chinese Communist Party] expects its nationals to run counter to the principle of neutrality enshrined in the UN Charter."
"Chinese officials serving in senior posts at the UN serve the narrow interests of and report back to the CCP, even as UN employees are expected to be impartial and independent," Lee said.
Advantages for China
Hoang Viet, a professor at Ho Chi Minh City University of Law, pointed out there are “certain advantages” for China in its continuing push to place candidates at international legal forums.
“Psychologically or politically, it is very clear that Vietnam does not like a Chinese candidate to be elected as an ITLOS’ judge because that thing may cause disadvantages for Vietnam,” he said. “For instance, when ITLOS organizes meetings or discussion, there will only be a Chinese representative to speak Chinese viewpoints, and Vietnam cannot [participate].”
There are 21 members of the tribunal in total. Judges must represent different geographic areas of the world according to the statute that first established ITLOS. Five judges represent Asia, and China has held at least one seat on the tribunal since it was created in the mid-1990s. Its current judge, Gao Zhiguo, will end his term on Sept. 30.
Still, China may have limited capacity to control the proceedings of ITLOS in a meaningful way by controlling just a single seat. Of the other tribunal seats, five are held by representatives from Africa, three from Eastern Europe, 4 from Latin America and the Caribbean, three from Western Europe, and one member who can be elected from either Africa, Asia, or Western Europe.
And the tribunal, which is based in Hamburg, Germany, isn’t very active. According to its annual report for 2019, it heard just four cases last year, and only made a judgment on one of them.
Julian Ku, a professor at the Hofstra University School of Law in New York, believes that although China has only one judge in the International Tribunal for the Law of the Sea, there is still the potential for that judge to hold management positions, and participate in specific cases China may take an interest in.
"They can form small trial teams to deal with specific disputes. For example, there is a team of 11 judges about disputes over seabed territories," he said in an interview with Radio Free Asia’s Mandarin-language service.
He added that having Chinese officials serve as judges in the International Tribunal for the Law of the Sea is part of a long-term strategy by China to control leadership positions in international organizations and ultimately make them less critical of China.
China's claims challenged
The most consequential court case in recent years concerning the Law of the Sea did not actually happen through ITLOS, but through The Hague-based Permanent Court of Arbitration.
Through that tribunal, the Philippines challenged the legal basis of China’s expansive claims in the South China Sea, and in 2016 won a landmark award that found China’s claim to ‘historic rights’ over the disputed waterway were invalid. That award set a key precedent on what is and is not a valid maritime or territorial claim in the South China Sea under UNCLOS, and has been cited by the Association of Southeast Nations as well as the U.S.
China refused to recognize that award, although the Permanent Court of Arbitration is empowered to hear disputes under Annex VII of UNCLOS. China continues to maintain it has historic rights to the South China Sea even though those claims overlap with those of five other Asian governments, as well as the maritime borders of Indonesia.
The U.S. accuses China of flouting international law and bullying its neighbors – a sentiment echoed this week in a letter from 80 civil society groups from countries around the world. Some groups who signed include the Army of the Republic of Vietnam (ARVN) Veterans Association in Australia, the Regional Tibetan Youth Congress of Toronto, and the Japan-based South China Sea Issue Consideration Council.
The letter called on the top diplomats of Britain, Japan, and India to “reject China’s arbitrary claims in the South China Sea,” and echo previous statements by the U.S. and Australia rebuking the legality of China’s claims in the disputed waters.
China’s candidate for judge wins a seat at a judicial body responsible for maritime disputes, but just how important was this election?
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