US expert opposes Chinese candidate for judge of International Tribunal for the Law of the Sea
The presence of the Chinese candidate has caused controversy in the context that for many years now, Beijing has not hesitated to demonstrate actions and statements that disregard UNCLOS, especially in the East Sea issue.
Ahead of the 30th Annual Meeting of the 167 Member States of the United Nations Convention on the Law of the Sea (UNCLOS) to be held from June 15-19, 2020, American experts have strongly criticized the inclusion of Chinese candidates in the list of candidates to elect 7 new judges to the International Tribunal for the Law of the Sea (ITLOS).
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According to the plan, in the working program of the UNCLOS Annual Conference, member countries will elect 7 new judges to ITLOS, replacing judges who have expired their terms. Accordingly, recently, a list of 10 judge candidates from 10 different countries has been selected. And it is worth mentioning that in this list is diplomat Duan Jielong - Chinese Ambassador to Hungary. The presence of the Chinese candidate has caused controversy in the context that for many years, Beijing has not hesitated to show actions and statements that disregard UNCLOS, especially in the East Sea issue.
In an analysis article: “Protecting the rules-based order at the International Tribunal for the Law of the Sea”, posted on the Lawfare website on May 8, 2020, Professor Jonathan G. Odom - a former US military judge, currently a professor of international law at the George C. Marshall European Center for Security Studies in Garmisch-Partenkirchen (Germany), called on UNCLOS member countries not to vote for the Chinese candidate.
“Chinese candidates are inferior to others”
According to American experts, just by comparing the candidates’ work history and professional qualifications, one can see the reality: the other 7 candidates among the 2020 nominees are much more qualified than the Chinese candidate to be a judge at ITLOS. This assessment is based on both Mr. Doan Khiet Long’s current or previous judicial experience and his work history.
Even setting aside the issue of individual qualifications, not voting for a Chinese candidate is a matter of principle. Every UNCLOS state party should ask itself: “Should China be allowed to serve a nine-year term on a UNCLOS-recognized tribunal when Beijing has so brazenly attacked the legitimacy of another tribunal, the Permanent Court of Arbitration (PCA), which is also recognized by UNCLOS?”
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Not to mention re-examining China's serious violations of international law in the East Sea.
“It is impossible to elect a country that is undermining UNCLOS to an UNCLOS Tribunal”
The Permanent Court of Arbitration has considered and ruled on the South China Sea case as a completely legitimate mechanism, while UNCLOS also clearly identifies four courts and arbitral tribunals with jurisdiction to adjudicate disputes within the framework of the convention: the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), a permanent arbitral tribunal established under one of the annexes to UNCLOS and a special arbitral tribunal to resolve certain types of special disputes.
It is important to note that UNCLOS does not prescribe any hierarchy among the four judicial mechanisms mentioned above. In other words, all are considered equal in terms of legal authority to consider and adjudicate disputes under the spirit of the Convention. Each State Party to UNCLOS has the right to choose one of the first three judicial bodies to settle disputes with other States regarding the interpretation or application of UNCLOS (Article 287). If a State Party does not declare to choose a specific mechanism to adjudicate disputes, it is considered to have accepted the arbitration mechanism, in accordance with the annex to UNCLOS (Article 287).
Since China has never made a declaration choosing a judicial mechanism, the only legitimate and legitimate judicial body to consider the case brought by the Philippines under UNCLOS is an arbitral tribunal.
At a press conference in Beijing in July 2016 following the Permanent Court of Arbitration's ruling on the South China Sea, then-Chinese Vice Foreign Minister Liu Zhenmin stated that the Arbitral Tribunal was not an “international court.”
According to Professor Odom, China’s argument is however just a fallacy. The clear answer according to the black and white provisions of UNCLOS is that this convention recognizes the Arbitral Tribunal as a legitimate judicial mechanism, which can have the same value and authority as ITLOS and ICJ in cases related to the interpretation and application of the convention.
Professor Odom affirmed that the Arbitral Tribunal has every right to make the final decision on whether it has jurisdiction to adjudicate the East Sea case or not.
After the Arbitral Tribunal issued its final ruling, denying the legal basis of the nine-dash line, Beijing attacked this legal mechanism in a statement issued by the Chinese Foreign Ministry on July 12, 2016, claiming that the Arbitral Tribunal’s actions and ruling were both “unfair” and “illegal” and “completely deviated from the aims and purposes of UNCLOS… significantly undermining the integrity and authority of UNCLOS, seriously violating China’s legitimate rights as a sovereign state and a member of UNCLOS…”.
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American analysts point out that by allowing itself to disregard the authority of a competent court clearly stated in the provisions of UNCLOS, China not only deprives all other countries under UNCLOS of the right to fair treatment but also the opportunity to seek justice of all other countries under UNCLOS who believe that their rights and interests have been violated by China.
“Parties involved in the East Sea lawsuit must comply with all decisions of the Arbitral Tribunal”
According to Professor Odom, the parties involved in the East Sea lawsuit have a legal obligation to comply with all decisions of the Arbitral Tribunal, from decisions related to jurisdiction to decisions on the value of the lawsuit.
The text of UNCLOS states: “Any decision made by a court or tribunal having jurisdiction under this section shall be final and binding upon all the parties to the dispute. This provision does not say “some decisions” but “any decisions”. Furthermore, all such decisions are “final”, i.e., without the right of appeal, and apply to any decision of a court or tribunal having jurisdiction under this section, i.e., including awards of an arbitral tribunal.
Immediately after the Permanent Court of Arbitration in The Hague issued its 501-page ruling on the South China Sea case, China declared that the ruling was “null and void” and non-binding.
Such assertions are in direct contradiction to Beijing’s legal obligations under UNCLOS. Under international law, China is required to comply with the decisions of the Arbitral Tribunal.
Based on China’s disregard for UNCLOS, clearly demonstrated in Beijing’s rejection of the Permanent Court of Arbitration’s ruling on the South China Sea in 2016, as well as a series of aggressive moves by China in the South China Sea, the US expert called on other UNCLOS member states to show their disagreement by not voting for China’s candidate to ITLOS this coming June. Instead, vote for a candidate with both greater capacity and experience than Beijing’s representative./.