South China Sea

Protecting the Rules-Based Order at the International Tribunal for the Law of the Sea

By Jonathan G. Odom
Friday, May 8, 2020, 8:00 AM

“It is just a piece of waste paper. You may just chuck it in the bin, leave it on the shelf, or put it in archives.” Those words were spoken by Liu Zhenmin, then the vice foreign minister for the People’s Republic of China, at a July 2016 press conference in Beijing. One day prior to his remarks, a tribunal constituted under the U.N. Convention on the Law of the Sea (UNCLOS) had issued a comprehensive, 501-page ruling in the South China Sea arbitration case between the Republic of the Philippines and China. As a state party to UNCLOS, the Philippines had initiated the proceedings three years prior, but China had refused to participate—even though it is also a party to UNCLOS. At this Beijing press conference, China not only notified the world that it considered the ruling to be “null and void.” Liu—one of China’s most senior diplomats—went one step further: He equated the legally binding judicial ruling to garbage.

Following the ruling, a number of other state parties to the UNCLOS treaty have encouraged China to reconsider its noncompliance. Immediately after the ruling was issued, the Philippines declared, “The decision upholds international law, particularly the 1982 UNCLOS.” On the same day, Australia’s government “call[ed] on the Philippines and China to abide by the ruling, which is final and binding on both parties.” Similarly, Japan’s foreign minister stated that “[a]s the Tribunal’s award is final and legally binding on the parties to the dispute under the provisions of UNCLOS, the parties to this case are required to comply with the award.” One week after the ruling, Canada’s foreign minister described the ruling as “binding on the parties” and stated, “Whether one agrees or not with the ruling, Canada believes the parties should comply with it.” However, there were a handful of other state parties to UNCLOS, particularly China’s close friends Pakistan and Russia, who were critical of the arbitration case. And in between, a significant number of other states sat on the realpolitik fence and maintained what diplomats colloquially describe as “strategic ambiguity.” Perhaps the members of that silent majority were hopeful that China would eventually honor its legal obligations in this binding judicial ruling.

Over the past four years, however, China has done anything but comply with the ruling. The Chinese government has continued to disregard and disparage it. Worse still, China is taking more assertive actions in the South China Sea to intimidate other claimant states, some of which directly undercut elements of the tribunal’s decision. For example, in January 2020, China’s Coast Guard escorted Chinese fishermen to fish illegally within Indonesia’s exclusive economic zone adjacent to its undisputed Natuna Islands. China notably undertook these actions in an area where Indonesia’s lawful maritime zone is overlapped by the southernmost portion of China’s infamous “nine-dash line,” which the tribunal determined (arbitral award, para. 278) to be contrary to China’s obligations under UNCLOS. These actions by China infringed on Indonesia’s treaty rights in the same way that China infringed on the Philippines’s treaty rights, which the tribunal had denounced (arbitral award, para. 1203). More recently, in April 2020, China’s Ministry of Civil Affairs unilaterally published official names for 25 South China Sea islands and reefs and 55 underwater features. China’s naming of these submerged features is troubling, suggesting that Beijing may subsequently construct yet another set of artificial islands and attempt to claim maritime entitlements for them, which UNCLOS (Article 60) clearly prohibits and the tribunal’s ruling reiterated (arbitral award, paras. 305-306). These are just two questionable actions by China—unfortunately, there are many others. When taken together, these actions call into question whether China, as a state party to UNCLOS, is genuinely committed to the international rules-based order, which this treaty and the judicial bodies empowered therein were designed to fortify.

The Challenges of Enforcing International Law

Given China’s disregard for the 2016 tribunal ruling and China’s troubling pattern of assertive actions, what should other states do to counter such behavior? And—at a more basic level—what exactly can they do in international relations to demonstrate that such unilateral actions by a state are unacceptable within the international rules-based order?

Of course, this ongoing situation is not a new challenge in international relations. Skeptics often question whether international law is actually “law,” given that there are limited to no ways of ensuring that states will comply with the specific rules contained therein. Realists argue that the international community of sovereign states will rarely take collective action against another state, particularly if that state has significant economic influence or military capabilities and the violation of international law does not rise to the level of raw aggression. As a practical matter, international relations rarely present opportunities for a group of states to demonstrate their objection to questionable behavior by another state, other than issuing formal diplomatic statements here or there—which China has consistently demonstrated it will ignore.

Occasionally, however, opportunities arise within the international rules-based order where states can do something to show their support for preserving that order and demonstrate their objection to unilateral behavior by another state that undermines it. Sometimes they can take an official action that cannot be vetoed by any of the five permanent members of the U.N. Security Council, including China. Sometimes they can take an action that does not require a world government or sizable military power. Sometimes they can take an action that is available within the parameters of the applicable treaty law, without attempting to invoke any of the ambiguous remedy provisions of the treaty. And sometimes they can take action that does not appear escalatory but, rather, is tailored to address both the “letter and spirit” of the legal regime that the other state has violated. In other words, there are occasionally tangible ways to uphold the international rule of law. But to do so, nation-states need to think unconventionally and seize nontraditional opportunities.

An Opportunity to Uphold International Law

In the coming months, the international community of nations will have an opportunity to do just that: that is, to show its support for the international rules-based order and demonstrate its objection to a member who has disregarded it. Later this year, in June, the 167 state parties to the UNCLOS are scheduled to convene for their 30th annual meeting, where they will exercise several of the procedural rights they each enjoy under the treaty. During that meeting, they will elect one-third of the judges on the International Tribunal for the Law of the Sea (ITLOS) for the next nine years—a treaty-mandated routine (Annex VII, Article 4), which occurs every three years. In the lead-up to that election, state parties recently nominated individuals to serve as ITLOS judges. To fill these seven judgeships on the tribunal, a total of 10 state parties exercised the treaty right to nominate a candidate: Brazil, Cameroon, Chile, China, Italy, Jamaica, Malta, Ukraine, Uruguay and Zimbabwe. Of note, China nominated Duan Jielog, who currently serves as China’s ambassador to Hungary.

This upcoming judicial election for ITLOS presents the international community of nations with a valuable opportunity. These 167 states have a lawful, peaceful and correlated way to uphold the international rule of law: by not casting a vote for China’s nominee to ITLOS—and voting for seven of the other nominees instead. Voting in this manner would be fully lawful, as each state party has total discretion to vote for the judicial candidates that it wants. Beijing might argue that voting against China’s nominee for ITLOS is “unfriendly,” but voting in such a manner would clearly satisfy international law’s definition of retorsion: “unfriendly conduct which is not inconsistent with any international obligation of the State engaging in it even though it may be a response to an internationally wrongful act.” Voting in this manner would be peaceful, as it is a diplomatic act involving no use of military force. And voting in this manner would also be correlated. In other words, this action would be tailored as a response to a specific situation for preserving the idea and institutions of international justice, by imposing consequences on a nation-state that has recently undermined that idea and those institutions. Moreover, it would send a message to China’s government that objectionable behavior can damage its standing in the international community of nations.

The Justifications for Not Voting for China’s Nominee

Comparing professional credentials, an argument could be made that seven of the other 2020 nominees are more qualified than China’s nominee to serve as a judge on ITLOS, given that they have current or prior judicial experience and Duan’s professional biography is void of any such background. But setting aside any further discussion of China’s nominee, it truly is the principle of the matter. Each UNCLOS state party must consider the following question: Should China be rewarded with a nine-year seat on a tribunal recognized by UNCLOS (that is, ITLOS), given the brazen way in which China has attacked the legitimacy of another tribunal (that is, the arbitral tribunals) that is also recognized by the same treaty? Without needing to examine the substantive violations of international law that the arbitral tribunal found China to have committed in the South China Sea, every state party should consider three ways in which China has fundamentally undermined the international rules-based order in this matter.

First, the arbitral tribunal that considered and decided the South China Sea case was fully legitimate. In fact, UNCLOS expressly identifies four courts and tribunals that have competence to adjudicate disputes under the treaty: the International Court of Justice (ICJ), ITLOS, “an arbitral tribunal” constituted under one of the UNCLOS annexes and “a special arbitral tribunal” that address several specially designated categories of disputes (Article 287(1)). Of note, the treaty does not in any way indicate a hierarchy or relative superiority among these four judicial bodies. In other words, they are all viewed as potentially equal in their legal authority to hear and adjudicate disputes under the treaty. Each state party to UNCLOS has a right to “choose” one of the first three judicial bodies for settling its disputes with other states concerning the interpretation or application of UNCLOS (Article 287(1)). If a state party does not declare a preferred forum for adjudicating its treaty disputes, then that party is “deemed to have accepted arbitration” in accordance with the UNCLOS annex (Article 287(3)). China has never made such a treaty declaration regarding its preference, so the sole lawful and legitimate judicial body to consider the case brought by the Philippines under UNCLOS was an arbitral tribunal. At the Beijing postruling press conference in July 2016, Minister Liu stated: “[T]his Arbitral Tribunal is not an ‘international court.’” China’s argument, however, is an irrelevant strawman. The issue is not whether the arbitral tribunal was an “international court.” Rather, the issue is whether the treaty to which China is a party identifies arbitral tribunals as a legitimate judicial forum for adjudicating disputes arising under that treaty. And the clear answer by the express terms of UNCLOS is that it does recognize arbitral tribunals as a lawful judicial forum, which can be equal in stature and authority to ITLOS and the ICJ in cases concerning the interpretation and application of the treaty.

Second, the arbitral tribunal was authorized to make the final determination on whether it had jurisdiction to arbitrate the South China Sea case. Under the international rule of law, judicial bodies are often empowered with the competence, or legal authority, to determine whether they have jurisdiction over disputes brought before them. This principle of international jurisprudence has been labeled as “Kompetenz-Kompetenz” in German and “la compétence de la compétence” in French. As one international tribunal explained, “It is a necessary component in the exercise of the judicial function.” Without it, a party could merely make a formal protest, and all proceedings would cease thereafter. Consequently, the treaties that establish international courts and tribunals include express provisions empowering those judicial bodies to make final determinations about jurisdiction in particular disputes. For UNCLOS disputes, the treaty expressly and clearly states: “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal” (Article 288(4)). Of note, like many other provisions of UNCLOS, the phrase “a court or tribunal” includes not only the ICJ and ITLOS but also arbitral tribunals like the one that adjudicated the South China Sea case. After the tribunal issued its final decision in this case, China attacked the tribunal as follows:

The conduct of the Arbitral Tribunal and its awards seriously contravene the general practice of international arbitration, completely deviate from the object and purpose of UNCLOS to promote peaceful settlement of disputes, substantially impair the integrity and authority of UNCLOS, gravely infringe upon China's legitimate rights as a sovereign state and state party to UNCLOS, and are unjust and unlawful.

But should a state party legally bound by all the terms of UNCLOS, including a provision that clearly empowers a tribunal with final authority on the question of determining jurisdiction, be allowed to disregard that authority? If so, then all other UNCLOS state parties who believed their rights and interests had been violated by that state party would not merely be denied justice; they would be denied any opportunity to even seek justice.

Third, the parties to the South China Sea arbitration case were legally obligated to comply with any decisions made by the tribunal, which include not only jurisdictional determinations but also decisions on the merits of the case. The text of the treaty clearly states, “Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute” (Article 296(1)). It does not say “some” decisions but rather “any” decision. All of those decisions are “final,” meaning there is no authorized avenue or forum for a party to appeal the decisions made by the court or tribunal. It applies to any decision by “a court or tribunal having jurisdiction under this section,” which—once again—includes a decision by an arbitral tribunal. Immediately after the arbitral tribunal issued its 501-page ruling on the merits, China declared the ruling to be “null and void” and to have “no binding force.” That rhetorical assertion, however, directly contravenes China’s legal obligations under the treaty. As a matter of international law, China is required to comply with the decisions rendered by the arbitral tribunal.

Deconstructing the Rhetoric for Electing Another China Judge

When weighing the decision of whether or not to vote for China’s nominee, state parties could be confronted with a number of rhetorical barbs. Below are several points that China’s government or its supporters might seek to argue. None of them has any merit.

That not voting for China’s nominee denies a treaty right to China: Nominating a judge to serve on ITLOS might be a right of every state party, but electing a judge to the tribunal is definitely not an entitlement for any state party, including China. Consider this statistical reality: There are 168 state parties to UNCLOS but only 21 judgeships on the tribunal. In fact, during the tribunal’s 25 years of existence, 80 percent of the state parties have never had one of their judges serve on the tribunal. Therefore, if China’s right was being violated, then so would those of 147 other state parties.

That not voting for China’s nominee during this cycle of ITLOS elections will prevent China from ever enjoying this opportunity: To the contrary, China has enjoyed such opportunities abundantly. Three of China’s judges have been members of the tribunal, including one of the tribunal’s current members. In fact, China is one of only a handful of state parties to have a judge serve in every year of the tribunal’s 25 years of existence.

That voting for nominees other than China’s would violate the applicable criteria for electing judges to this international tribunal: An annex to UNCLOS provides that state parties are to elect ITLOS judges “from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of law of the sea” (Annex VII, Article 2). But the other nine nominees are all much more qualified than China’s. For these purposes, it is helpful to highlight noteworthy credentials of the other nine nominees in this ITLOS election. Two of them currently serve as members of ITLOS and seek re-election (Malta, Ukraine). Three others currently serve as designated members of the Permanent Court of Arbitration (Chile, Uruguay, Italy), and one of those has prior experience litigating multiple cases before ITLOS (Italy). Another has been serving for the past 12 years as the secretary of the ICJ (Cameroon). Another is a widely published scholar in the field of law of the sea and previously served as the personal assistant to an ITLOS judge ( Brazil). Another has served for the past 12 years as her government’s permanent representative and deputy permanent representative to the International Seabed Authority (Jamaica). And the ninth nominee has extensive judicial experience, having served as a justice on his nation’s highest court for the past eight years (Zimbabwe). In direct contrast, the public biography for China’s nominee includes zero experience serving as either a judge or an international arbitrator; thus, he has no known record of experience for hearing both sides of a dispute with “fairness and integrity.” While he has some prior experience as a lawyer within China’s Ministry of Foreign Affairs, that legal experience is 10 years old. Moreover, his boss in that legal office was the same individual who infamously equated the UNCLOS arbitral tribunal’s legally binding ruling to “just a piece of waste paper.” For the past decade, China’s nominee served as the consul-general to Australia, ambassador to Singapore and ambassador to Hungary—impressive diplo-political positions, but ITLOS is not a diplomatic or political forum. Moreover, it is unclear whether he has any known record or published scholarship demonstrating an expertise in the law of the sea. In short, when the professional record of China’s nominee is compared to the expertise and experience of the other nine nominees, a strong argument could be made that at least seven of the other nominees are more qualified than he is to serve as a judge on ITLOS.

That not voting for China’s nominee would exclude the “Asian perspective” from this international tribunal: An annex to UNCLOS expressly requires that the membership of ITLOS shall include an “equitable geographical distribution” (Annex VII, Article 2). This mandates that ITLOS membership include “no fewer than three members from each geographical group as established by the General Assembly of the United Nations” (Annex VII, Article 3). As specified by the General Assembly, China is one of the 55 members within the Asia-Pacific Group. Currently, the membership of ITLOS has four members from the Asia-Pacific Group whose judges were elected in previous triennial elections (India, Japan, Republic of Korea and Thailand). Therefore, even if China’s nominee is not elected during this 2020 cycle, ITLOS will continue to have more than its minimum requirement of geographic representation from Asia-Pacific state parties.

That voting against China’s nominee would be an impermissible way for other states to demonstrate their disapproval with its recent behavior: Some might wonder whether prior questionable behavior by other states has impacted the election of their nominees to international courts. The short answer: It is unknown. For example, the ICJ ruled in 1986 against the United States in a dispute with Nicaragua, which the United States famously rejected. At the time, a U.S. judge was serving as a member of the ICJ and wrote dissenting opinions on both jurisdiction and the merits. Nevertheless, 15 months later, a majority of the members of the United Nations re-elected that same judge to the ICJ. Given the rules of procedure for the U.N. General Assembly (Rule 92), those 1987 elections were held by secret ballot, so we will never know the factors that contributed to the voting decisions of individual states for or against that particular judge, unless any of those states decide to publicize their own votes. More recently, during the 2017 election of ICJ judges, there was a series of run-off votes between the U.K. and India nominees. Ultimately, the U.K. nominee was defeated, resulting in the first period of the court’s 71-year history when the United Kingdom does not have a judge. After the election, the U.K. government acknowledged that the secret balloting process prevented it from ever knowing which states voted against their ICJ nominee and why. But British press reporting suggested that some member states might have voted against the U.K. nominee because he had previously provided legal advice to U.K. Prime Minister Tony Blair’s government during the run-up to the invasion of Iraq in 2003. In summary, there are three insights to consider. First, an UNCLOS state party is not prohibited by international law from considering China’s prior questionable behavior when deciding for which ITLOS nominees it will vote; second, if an UNCLOS state party prefers to register a “silent” objection to China’s behavior, that state is not obligated under international law to disclose or explain its vote to China or anyone else, because the balloting for electing ITLOS judges is secret; and third, if an UNCLOS state party chooses to publicize its objection to China’s behavior, that state is not prohibited by international law from disclosing for whom and why it voted in the ITLOS elections.

As an aside, some critics might launch an ad hominem attack at this author, given that the author is employed by the U.S. government and the United States is not a party to UNCLOS. Both of those facts are true, but the implication of hypocrisy is false. First, the United States is not being hypocritical. This commentary was written entirely in this author’s personal capacity, and the idea of proposing how state parties should vote in the upcoming ITLOS election originated entirely with this author and has not been discussed with any U.S. government official. Second, this author is also not being hypocritical. In a personal capacity, this author has consistently and persistently advocated for the United States to become a party to UNCLOS. In an official capacity, this author has also assisted in the drafting of press statements and Senate testimony on behalf of senior U.S. military leaders, which recommended that the United States become a party to the treaty. In fact, one of the arguments in favor of U.S. accession to UNCLOS is that actions and inactions have consequences: That is, not acceding to the treaty means that the United States does not have the right to nominate judges to ITLOS. Likewise, the actions and inactions of China should have consequences. For instance, not respecting the binding ruling of one tribunal recognized by UNCLOS should mean losing the opportunity to serve in the immediate future on another tribunal recognized by that same treaty.

Answering China’s “Call” to Enforce International Law

In January 2017, Chinese President Xi Jinping traveled to Geneva, Switzerland, and delivered a keynote speech to the United Nations Office there about “building” a “community of shared future for mankind,” which he described as “the call of our time.” His remarks to this international audience touched on many aspects of international relations, including the role of law in those relations. He declared that “[t]he relevance of law lies in its enforcement. It is thus incumbent on all countries to uphold the authority of the international rule of law, exercise their rights in accordance with law and fulfill their obligations in good faith.” Setting aside the irony that he delivered this speech only six months after his government deliberately refused to comply with a binding judicial decision, the idea contained within those remarks is nonetheless commendable and worth following.

The state parties to UNCLOS will have a rare opportunity to answer President Xi’s call to enforce international law at this year’s annual meeting. That is, these sovereign and independent states can individually “exercise” their “right” to vote “in accordance with” the treaty law of UNCLOS, in a way that holds another state party to account for not “fulfill[ing] their obligations in good faith,” in order for this large group of states collectively to “uphold the authority of the international rule of law.” When casting their votes for which state parties should have the privilege of their nominee serving on ITLOS, the only question is this: Will those 160-plus national governments have the courage to seize that opportunity and vote with their conscience?