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PRC official’s election to international tribunal sparks concern for settling South China Sea disputes

PRC official’s election to international tribunal sparks concern for settling South China Sea disputes

FORUM Staff

The election of the Chinese ambassador to Hungary to the International Tribunal for the Law of the Sea (ITLOS) is an example of the PRCs targeted campaign to increase their influence on the international rules-based system through associated organizations, such as this court.

The 168 states that signed onto the United Nations Convention on the Law of the Sea (UNCLOS) elected six new judges, including Chinese dignitary Duan Jeilong, to ITLOS in late August 2020.

Observers doubt that Duan, in his capacity as director-general of the treaty and law department of the People’s Republic of China’s (PRC’s) foreign affairs ministry, is capable of being a neutral arbiter in the international community. The other five judges, who will serve nine-year terms, are from Cameroon, Chile, Italy, Malta and Ukraine. There are 21 judges on the panel altogether.

“Electing a PRC official to this body is like hiring an arsonist to help run the fire department,” David Stilwell, U.S. assistant secretary of state for East Asian and Pacific affairs, said during a forum earlier in August at the Center for Strategic and International Studies (CSIS). The U.S. is neither a signatory to UNCLOS nor a member-state.

In 2016, a separate UNCLOS tribunal dismissed the PRC’s claims to nearly 90% of the South China Sea, determining them to be baseless. The PRC has refused to accept or abide by the ruling to the dismay of many nations in Southeast Asia and beyond, from the claimant, the Philippines, to Australia, Canada and Japan. (Pictured: Chinese coast guard vessels patrol past Philippine fishing boats in the disputed Scarborough Shoal in April 2017.)

There are at least four tribunals through which UNCLOS disputes may be settled.

Following in the footsteps of the Philippines, the Vietnamese government has been considering taking legal action against Beijing over the South China Sea. In May 2020, Hanoi nominated four arbitrators and four conciliators, signaling that it could soon pursue an arbitral tribunal, according to news reports.

Given the new PRC judge, observers speculate that Vietnam, like the Philippines, would not use ITLOS to uphold its claims.

Through manipulation of geographical nominating requirements, the PRC has ensured that a Chinese judge has always served on ITLOS since the tribunal’s founding in 1996.

“This long pattern of China’s uncontested nominations to the tribunal contributes to emboldening Beijing to disregard the rule of law — including in the South China Sea,” Jonathan Odom, a U.S. Navy attorney and military scholar, argued in the August 10, 2020, edition of Lawfare, a blog dedicated to security issues.

“After diving into the history of ITLOS’s regional allocation of seats and China’s uncontested nominees, I argue that the net result for Beijing of this de facto ‘China seat’ on ITLOS is a potential sense of entitlement and impunity for taking actions contrary to UNCLOS and the rule of law,” Odom wrote. “Rewarding China for its adventurism and ratifying its absurd maritime claims is a very bad idea.”

Since its inception, ITLOS has taken 28 cases relating to prompt release of vessels and crews, coastal state jurisdiction in maritime zones, freedom of navigation, hot pursuit, the marine environment, flags of convenience and the conservation of fish stocks, according to the South China Morning Post newspaper.

The significance of the ITLOS election is tempered by the fact that nations may pick from many UNCLOS tribunals to enforce claims in the South China Sea and elsewhere, analysts said.

“Individually and collectively, those [168 member] states have an obligation to do their fair share to uphold the principles and institutions of the international rules-based order reflected in that treaty,” Odom wrote in Lawfare.

And as for the U.S.:  “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,” Greg Poling, senior fellow for Southeast Asia and director of the Asia Maritime Transparency Initiative at CSIS, told CNBC in August 2020.

“And that will have a proportionately greater effect on China’s international reputation.”

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