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Chinese candidate unworthy of the position as a judge at the International Tribunal for ITLOS

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International Tribunal for the Law of the SeaAs planned, the 30th Meeting of States Parties to the 1982 United Nations Convention on the Law of the Sea took place from 15th to 19th June, 2020. The Meeting’s agenda covered the election of seven new Judges to the International Tribunal for the Law of the Sea (ITLOS), replacing seven outgoing predecessors.

There are currently 10 candidates from 10 different countries, including the Chinese candidate - Mr. Duan Jielong, Chinese Ambassador to Hungary. China has been aggressively campaigning for their candidate, even resorting to bribing and pressuring other state parties. Nonetheless, Mr. Duan Jielong, as the Chinese candidate, does not deserve to be elected to such an important office for the following reasons:

First of all, in terms of professional expertise and work ethics, members of the ITLOS need to be among the world's leading law experts, with experience in public international law, especially on the law of the sea and is known for impartiality. Given Mr. Duan Jielong’ work history and qualifications, it is evident that he is inferior to other candidates both in terms of professional and legal experience.

Mr. Duan Jielong is a Chinese diplomat (Ambassador of China to Hungary). As China had made the decision to endorse the candidature of a politician and diplomat for the position of ITLOS judge, their ploy to politicize ITLOS, rather than a fair legal entity, has become clear. Therefore, should Mr. Duan Jielong assume the position of an ITLOS judge, his election will hurt the Tribunal’s impartial nature and decision, as well as its reputation.

Second, China’s aggressive, belligerent, intimidating and bullying actions towards its neighbors at sea in the past, especially in the South China Sea, despite international law, are further proof that a Chinese candidate cannot become a judge at the ITLOS. China has been regularly condemned by the international community for serious violations of international law, especially the UNCLOS. Beijing is regarded as an undermining party to international law due to its principle of "might makes right" (i.e., the law of the jungle) which has been adopted whenever China oppresses and encroaches upon the waters of its neighbors in the South China Sea. Beijing itself has distorted or misrepresented the UNCLOS to justify its claims and misconduct in the South China Sea. How can a candidate from an international lawbreaker and undermining party to UNCLOS worthy of becoming a judge at the ITLOS, the agency that defends the provisions of UNCLOS?

Third, China has explicitly refuted UNCLOS's dispute settlement legal mechanisms, so it is completely ineligible to be an ITLOS judge – as ITLOS is one of the four international dispute resolution mechanisms.

In 2013, the Philippines filed a case against China at the Permanent Court of Arbitration (PCA) related to the interpretation and application of 1982 UNCLOS, including a proposal to reconsider the validity of China’s "cow's tongue line".

China has since denied the PCA’s jurisdiction and not participated in the case, out of concern that the PCA will dispute its “cow's tongue line” claim - the manifestation of China's territorial ambitions in the South China Sea.

However, the Tribunal was still established in accordance with Annex VII of UNCLOS 1982 and proceeded as specified in UNCLOS. Having reviewed the contents of the lawsuit, on July 12, 2016, the PCA issued a ruling which completely disputed the "cow's tongue line" claim, as well as other justifications China might have cited to justify its illegal claim in the South China Sea.

Not only did China not enforce the July 12, 2016 decision by the PCA, but it also furthered encroachment in the South China Sea. Though China had ratified and become an UNCLOS member in 1996, Beijing challenged the legal status of the PCA which was recognized by UNCLOS as one of the four legal mechanisms for dispute resolution. On the other hand, Beijing has since threatened to withdraw from the 1982 UNCLOS.

Given China's disregard for UNCLOS, as evident in Beijing's denial of PCA’s South China Sea ruling in 2016, as well as a series of aggressive actions in the area, China does not deserve to have a representative as an ITLOS judge.

 

 

 


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