China wants a seat in an international tribunal for maritime disputes. The U.S. is against it

The emblem of the International Tribunal for the Law of the Sea (ITLOS) at the court’s entrance in Hamburg, Germany.

Patrick Lux | AFP | Getty Images

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.

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.

Greg Poling

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.

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.”

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