How the World Enables China's Legal Gamesmanship

Writing on Lawfare in May, I described how a large bloc of countries might collectively protect the rules-based order at the International Tribunal for the Law of the Sea (ITLOS). More specifically, I suggested that the official delegates of the 160-plus national governments who will convene later in 2020 for the 30th meeting of state parties to the U.N. Convention on the Law of the Sea (UNCLOS) could vote against China’s nominee for an ITLOS judgeship—who, if elected, would serve for the next nine years. I asserted that it would send a message, both individually and collectively, to China’s government: that Beijing’s disregard for the legally binding 2016 UNCLOS arbitral tribunal’s ruling on the South China Sea was an unacceptable challenge to the international rules-based order. I further argued that such action by this large group of sovereign states would be both lawful and peaceful. In this analysis, I turn to consider a separate arrangement made by the UNCLOS state parties that mandates a regional allocation of all ITLOS seats, and show how this has created a de facto “China seat” on ITLOS. I argue 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.

Recently, on the fourth anniversary of the arbitral tribunal’s ruling on the South China Sea, the U.S. government invoked the ruling in its South China Sea policy and highlighted the upcoming ITLOS elections. The U.S. Department of State issued a six-paragraph statement, which notably specified several ways in which the United States is “aligning the U.S. position on [China’s] maritime claims in the [South China Sea] with the Tribunal’s decision.” On that same day, U.S. Assistant Secretary of State David Stilwell, Bureau of East Asian and Pacific Affairs, delivered a speech during the Center for Strategic and International Studies’s annual South China Sea Conference. After discussing the new U.S. policy statement on the South China Sea situation and the anniversary of the tribunal’s binding ruling, Stilwell raised “four other aspects of the South China Sea issue.” Of note, he discussed the fourth of these aspects as follows:

Fourth, on the International Tribunal on the Law of the Sea: Beijing is running an uncontested candidate for a judge’s position on this tribunal at an election currently slated for late August/early September.

Like the Arbitral Tribunal that ruled against Beijing in 2016, the International Tribunal is established under the U.N. Convention on the Law of the Sea. Electing a PRC [People’s Republic of China] official to this body is like hiring an arsonist to help run the Fire Department.

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.

Four days after the U.S. government issued its new South China Sea policy statement and Stilwell delivered these remarks, a reporter from the Beijing Daily, which is the official newspaper of the Chinese Communist Party’s Beijing Municipal Committee, raised the topic during the daily press briefing at China’s Ministry of Foreign Affairs. Specifically, the reporter asked for a comment by China’s government on Stilwell’s remarks about the upcoming ITLOS elections and China’s nominee. In response to this question, ministry spokesperson Hua Chunying discussed the electoral system of ITLOS judges. She highlighted, “It has been the long-standing consensus and consistent practice of the Parties to the Convention that the representation of the principal legal systems of the world and equitable geographical distribution shall be assured.” Additionally, she stated that China’s nominee for the upcoming ITLOS elections “has been approved by the United Nations Asia-Pacific Group.”

In my previous commentary on this topic, I addressed the issue of China’s nominee in relation to the geographic representation of ITLOS membership. Toward the end of my analysis, I identified six arguments that critics of my proposal might invoke to counter the idea. One of those six forecasted arguments was: “That not voting for China’s nominee would exclude the ‘Asian perspective’ from this international tribunal.” In anticipation of this argument, I proffered the following counterargument:

An annex to UNCLOS expressly requires that the membership of ITLOS shall include an “equitable geographical distribution” (Annex VI, 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 VI, 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.

As indicated by the citations included within this passage, my particular counterargument was based on the “ordinary meaning” of the “terms of the treaty,” as is required by Article 31(1) of the Vienna Convention on the Law of Treaties.

What I unknowingly neglected to do, however, was consider a separate arrangement made by the UNCLOS state parties. In brief, the text of UNCLOS requires only that some of the ITLOS seats be distributed among the five regions of the world, but the state parties now follow an arrangement in which all the seats are allocated among those five regions, with five of those seats guaranteed to candidates nominated by Asian state parties. Throughout the 25-year existence of ITLOS, one of those five seats allocated to Asian state parties has been continuously filled by candidates nominated by China. But except for the first set of ITLOS elections in 1996, no candidate nominated by China has ever faced competition from any other Asian state party. As a result, each of these Chinese candidates easily won the uncontested election.

Aware now of this salient detail and reflecting on the recent exchange of rhetorical fire between U.S. and Chinese officials about the upcoming ITLOS elections, a follow-up analysis on this issue is warranted. 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 law. To address this systemic problem, there are a number of specific actions that the international community can and should undertake.

UNCLOS and Geographic Distribution

The text of UNCLOS was concluded Dec. 10, 1982, and entered into force on Nov. 16, 1994. As mentioned previously, Annex VI to UNCLOS requires the composition of ITLOS to include at least three judges from each of the five regional groups established by the U.N. General Assembly, for purposes of “equitable geographic distribution.” Based only on the terms of the treaty, this would implicitly mean that the other six seats of the 21-member ITLOS could be filled by judges without regard to the regions where their nominating states are geographically located.

The U.N. General Assembly has identified five regional groups of U.N. member states, which differ widely in the number of members assigned to each. In terms of total numbers and relative percentages of 193 U.N. member states, the composition of these groups (for electoral purposes) is currently as follows, from largest to smallest:

The members of these U.N. regional groups have become parties to UNCLOS at different rates over the past 25 years. Cross-referencing the chronological list of states joining UNCLOS with the designation of their respective regional groups shows a trend of states joining the treaty:

These snapshots of states acceding to UNCLOS shows that African states joined at a faster rate in the early years of the treaty’s life, while the Western European and Eastern European states joined at a slower rate. Eventually, the accessions for each region leveled off, to the point that the regional percentages of UNCLOS memberships are now relatively similar to the regional percentages of U.N. membership.

ITLOS and Regional Allocation of Seats

Geographic representation and ITLOS elections have been an issue since the tribunal was first constituted, and state parties have sought to address this issue through electoral procedures. For the first election of ITLOS members in 1996, the president of the UNCLOS state parties meeting made a proposal, with the stated purpose of “reconcil[ing] the need for some certainty in geographical representation in the composition of the [ITLOS] on the one hand and the need to provide all candidates an equal opportunity to contest the election on the other.” Without violating the treaty’s requirement that each region would have at least three members of the tribunal, the 1996 arrangement allocated all the seats across the five geographic regions as follows: Five judges would be elected from the Group of African States, five from the Group of Asian States, four from the Group of Latin American and Caribbean States, four from the Group of Western and Other States, and three from the Group of Eastern European States. Before the state parties began their voting in 1996 ITLOS elections, they adopted this proposal “by consensus.”

As more states became parties to UNCLOS, significant differences persisted in percentages of UNCLOS state parties among the five U.N. regional groups. Two of the five regional groups (Asian states and African states) formed a significantly larger percentage of total UNCLOS state parties than the other three regional groups. Consequently, those two groups undertook efforts to address what they perceived as a disconnect between the UNCLOS provision for “equitable geographic distribution” for ITLOS seats and this disparity of memberships among the five geographic regions. They advocated for ensuring that they would have a larger representation of their two regions among the 21 ITLOS judgeships. As a result, a practical arrangement was negotiated between the UNCLOS state parties between 2007 and 2009.

At the Seventeenth Meeting of UNCLOS state parties in June 2007, the two groups of African states and Asian states submitted a joint proposal “in relation to the allocation of seats” for both ITLOS and the Commission on the Limits of the Continental Shelf. Their proposal highlighted “the past substantial growth in the number of, in particular, African and Asian States parties” and a “need for revision of, and some certainty in, the equitable geographical representation in the composition of” ITLOS. Among other elements of this proposal, the African and Asian states proposed that their two groups would each have a minimum of five seats on ITLOS. At the 2007 meeting, the UNCLOS state parties decided to consider that proposal at the following year’s annual meeting.

At the Eighteenth Meeting of UNCLOS state parties in June 2008, the states discussed this joint proposal in greater detail. As reflected in the Report of the Meeting of States Parties, Egypt spoke as the representative of the African group and the Philippines spoke as the representative of the Asia-Pacific group during the discussions about this joint proposal. Egypt and the Philippines stated that their joint proposal was based on “the need to reflect fairly the increased number of States parties to the Convention from their groups.” At the time of the 18th Meeting, the Asian States group and the African States group held a total of 81 votes as UNCLOS member states, as compared to the other three groups having a total of 71 votes. Thus, not surprisingly, the meeting of UNCLOS state parties decided to “adopt a decision” the following year providing that the “arrangements” contained in the African-Asian joint proposal would be “applicable to future” ITLOS elections.

At the Nineteenth Meeting of UNCLOS state parties in June 2009, the state parties adopted the “arrangement for the allocation of seats” on both ITLOS and the Continental Shelf Commission. As compared to the original distribution mandated by UNCLOS in 1982, this arrangement allocates seats for ITLOS as follows:

Since 2009, the UNCLOS state parties have followed this arrangement in every triennial set of ITLOS elections, including those held in 2011, 2014, and 2017. In each of these triennial elections, the president of the UNCLOS state parties for that particular state parties’ annual meeting considers both the details of this arrangement and the composition of the tribunal’s existing membership (that is, members whose nine-year terms of office were scheduled to expire either three or six years later). The president then specifies to the state parties how many open seats on the tribunal are to be allocated to each of the five regional groups during the present election.

What is important to understand is how strictly the state parties follow this regional allocation of ITLOS seats during these triennial elections. Any reader who consults the official reports of these annual UNCLOS state parties’ meetings will see a detailed description of how the voting in ITLOS elections is conducted and calculated. These annual reports speak in terms of tabulating “valid” ballots, “invalid” ballots and “abstentions,” and include a detailed tabulation of votes cast by state parties within each of these three categories. Of note, a passage in the 2005 annual report explains how ballots can be invalid: “[B]allots would be deemed invalid if votes were cast for more candidates than the number of seats allocated to each region.”

Whether it is de jure or de facto, this arrangement for allocating seats to regional groups appears to be followed as strictly as if it were codified in the original text of UNCLOS, Annex VI itself. The net effect is that the original intent among the states negotiating UNCLOS has been overtaken by a differing intent: Instead of geographic distribution being a factor for only 15 of the 21 ITLOS seats, it has become a factor for all seats. This has been formalized within election procedures to the point that, during the 2017 elections, five separate ballots were distributed simultaneously to each state party, with each ballot containing only the list of candidates for that region.

The rigid adherence to this arrangement for the regional allocation of ITLOS seats over all other matters is questionable, especially if a seat is allocated to a particular region and only one state party from that region has nominated a candidate in a particular set of triennial elections. A couple of hypothetical scenarios can help to illustrate the risk. First, what if the state party that nominated a particular candidate has repeatedly and systematically committed material breaches of its obligations under UNCLOS? Second, what if a state party has nominated an individual who is minimally qualified to serve on the tribunal—perhaps a candidate who only recently completed his or her legal education and practiced law for a limited period. In either of those cases, any state party that decides not to vote for a candidate nominated under such circumstances and vote for a candidate nominated by a state party from another region would be deemed to have cast an “invalid” ballot. The net result is that either of these hypothetical candidates would be elected to serve for the next nine years on ITLOS and adjudicate legally binding decisions upon other state parties.

Is that a prudent electoral system for ensuring international justice? The clear answer is no. What would be the sanity check on this arrangement run amok? As it currently exists, there is none.

A History of China’s Uncontested Nominees to ITLOS

Consider also the history of how China has positioned and retained its judges on ITLOS. Although UNCLOS entered into force in November 1994, the state parties agreed at that time to defer the first election of members of ITLOS until August 1996. In the interim, China joined as a party to UNCLOS in June 1996, which was just in time to nominate a candidate in the first round of ITLOS elections in July 1996. During the 25-year history of the tribunal, UNCLOS state parties have nominated and elected a combined total of 46 individuals to serve as members of the tribunal. As highlighted previously, China is one of only a handful of UNCLOS state parties to have a judge serve in every year of the tribunal’s 25 years of existence. It is worth taking a closer look at the history of ITLOS elections, particularly the elections in which China’s nominees were elected to serve on the tribunal.

In 1996, the UNCLOS state parties nominated a total of 33 individuals to fill the 21 seats, which included China nominating Lihai Zhao. But China’s candidate was not competing for votes against the other 32 candidates. The state parties agreed at the 1996 meeting to allocate a certain number of seats on the tribunal to each of the five U.N. regional groups, with five of those seats being allocated to the Group of Asian States. In total, seven Asian state parties nominated candidates. Thus, as a practical matter, China’s nominee only needed to receive more votes than two other Asian candidates in order to earn one of the five seats on the tribunal allocated to Asian states.

Under the voting procedures for ITLOS elections, a candidate must earn two-thirds of the total votes cast by the state parties, which can sometimes require multiple rounds of balloting for a candidate to be elected. For the 1996 ITLOS elections, eight rounds of balloting were required until all 21 seats of the tribunal were filled. The breakdown of the 1996 elections was as follows:

For the five seats allocated to the Group of Asian States, the first three judges were elected in the first round. After the fourth round of balloting, the president called a brief recess “to allow some time for reflection.” One of the three remaining candidates nominated by an Asian state (Sri Lanka) then withdrew its candidate from the elections. When Lebanon’s candidate was elected in the fifth round, only China’s candidate and the Philippines candidate remained to compete against one another for the fifth Asian seat on the tribunal. China’s candidate did not receive the necessary two-thirds of state party votes until the sixth round.

From this voting history in the 1996 ITLOS elections, one could reasonably conclude that the UNCLOS state parties at the tribunal’s inception were reluctant to elect China’s candidate to the tribunal. But what transpired in subsequent ITLOS elections of China’s candidates is even more interesting: That is, 1996 was the only year when a candidate nominated by China actually faced competition in an ITLOS election.

In October 2000, Zhao died before completing his full term of office, necessitating a special election to fill this vacancy. In 2001, at the next annual UNCLOS state parties meeting, China was the only state party to nominate a candidate to fill this vacancy. China nominated Guangjian Xu, who was elected unopposed to serve the remainder of Zhao’s term.

In 2002, Xu’s ITLOS term expired, and this seat on the tribunal opened up for a judge elected during the next set of triennial elections. In total, 13 state parties nominated candidates to fill seven seats on the tribunal, including China, which renominated Xu. At the time, the tribunal’s composition already included four judges from the Group of Asian States, and China’s nominee was the only candidate among the 13 nominees who was from an Asian state. In effect, Xu was running unopposed for the fifth Asian seat and, not surprisingly, was elected in the first round of balloting.

In August 2007, Xu resigned for unstated reasons before completing his full term of office, necessitating a special ITLOS election to fill this unscheduled vacancy. In January 2008, a special meeting of UNCLOS state parties was held, and China was the only state party to nominate a candidate to fill this vacancy. China nominated Zhiguo Gao, who was elected unopposed to serve the remainder of Xu’s term.

In 2011, Gao’s ITLOS term expired, and this seat on the tribunal was set to be filled by a judge elected during the next set of triennial elections. By this time, the UNCLOS state parties had adopted the 2009 arrangement for allocating seats regionally for ITLOS elections. In total, 10 state parties nominated candidates to fill seven seats on the tribunal, among them China, which renominated Gao. At the time of these elections, four seats on the tribunal were filled by judges who had been nominated by other state parties within the Group of Asian States and whose nine-year terms of office were scheduled to expire either three or six years later. Therefore, China’s nominee was, once again, the only candidate among the 10 nominees who was from an Asian state. Yet again, Gao was in effect running unopposed and, not surprisingly, he was elected in the first round of balloting.

This brings the story to the present day. Gao’s current ITLOS term will soon expire, and this seat on the tribunal will be filled by a judge to be elected during the upcoming set of triennial elections. While the date of the 2020 UNCLOS state parties annual meeting has not yet been scheduled due to the coronavirus pandemic, the procedures for the 2020 ITLOS elections have already been published and they will follow the 2009 arrangement for regional allocation of seats.

In total, 10 state parties have nominated candidates to fill seven seats on the tribunal, including China, which nominated Jielong Duan. At the time of these upcoming elections, four seats will be filled by judges who were nominated by other state parties within the Group of Asian States and whose nine-year terms of office are scheduled to expire either three or six years later. Yet again, China’s nominee is the only candidate among the 10 nominees for the 2020 elections who is from an Asian state. Absent some intervening event or circumstance, China’s nominee is all but guaranteed to be elected to the tribunal for the next nine years.

This electoral history shows that ITLOS has a de facto “China seat” among its 21 judgeships. Among five prior elections in which China nominated a candidate for the tribunal, only one of those nominees faced competition from candidates from other state parties—and it took six rounds of balloting before a two-thirds majority of UNCLOS state parties were willing to cast more votes in favor of China’s nominee than for the nominee of another Asian state. In all other elections described above, including in 2020, China has nominated a candidate who is unopposed by any other Asian nominees. Due to these circumstances, Assistant Secretary Stilwell was entirely accurate in his recent speech when he characterized China’s nominee as “an uncontested candidate.”

What Should the International Community Do About This?

China has materially breached many of its obligations as a state party to UNCLOS. As I have catalogued previously, China is one of only a handful of coastal states in the world that has enacted excessive maritime claims restricting the maritime freedom of other states in every one of its maritime zones, including by improperly drawing straight baselines along most of its mainland coastline resulting in excessive claims to internal waters and territorial seas; improperly drawing straight baselines around its claimed island groups (which is permitted only for “archipelagic states”); impairing the right of innocent passage in its territorial sea; asserting an ambiguous security jurisdiction in its contiguous zone; restricting the freedom of overflight in its air defense identification zone for aircraft not intending to enter China’s national airspace; and restricting noneconomic activities in its exclusive economic zone. Worse still, China continues to assert its infamous “nine-dash line” claim, which covers more than 85 percent of the South China Sea and which no other state in the world has recognized as legal or legitimate. At the same time, China applies a double standard, when it exercises its rights and freedoms in the maritime zones of other coastal states in ways that China asserts are illegal in its own maritime zones. Lastly, China wholly disregarded a comprehensive legally binding ruling issued by a properly constituted international tribunal, which applied numerous provisions of UNCLOS and invalidated a number of China’s excessive maritime claims identified above.

China is fully within its rights as a UNCLOS state party to nominate another candidate to serve on ITLOS. If anything, realists could argue that China is merely engaged in what this author has previously characterized as “legal gamesmanship”—that is, the art of winning competition between states in the international rules-based order. But China has only one vote in these ITLOS elections, so it cannot elect a judge on its own. Thus, the onus falls on other state parties to impose consequences on behavior by a particular state that those states deem to be unacceptable.

One could point the finger at all 160-plus state parties to UNCLOS for departing from a codified electoral system in which geographic distribution was a factor for only 15 of the 21 seats on ITLOS to a system in which geographic origin of the candidates is the predominant factor for candidacy. The net result is that the electoral system now relegates personal qualifications to a mere afterthought and discourages competition for the best qualified experts in the world to serve as jurists. In the immediate future, the non-Asian state parties to UNCLOS could vote in 2020 ITLOS elections for seven of the candidates other than China’s candidate; however, due to the electoral procedures, any of their ballots that fails to include a vote for the one Asian candidate would be deemed “invalid.” In the longer term, the 160-plus state parties should consider whether to institute some sort of safety-check on the current electoral system, to ensure that uncontested candidates who are less qualified than candidates from other regions or who are nominated by states that flout their treaty obligations are not automatically elected.

But even more responsibility falls on the other 41 Asian state parties to UNCLOS for creating a de facto “China seat” on ITLOS. Together with the African state parties to UNCLOS, they held the majority of votes that pushed for and adopted the 2009 arrangement allocating five ITLOS seats to Asian states. But after voting in favor of formalizing these five Asian seats, many of Asian state parties to UNCLOS have failed to nominate a robust pool of candidates for consideration and have therefore neglected to ensure genuine competition for filling those five seats on the tribunal. Between 1996 and the present, four of the ITLOS seats allocated to Asian state parties have been filled continuously by judges from four states: China, India, Japan and the Republic of Korea. For 21 of those 25 years, the fifth seat was filled by a judge from Lebanon.

In the immediate future, what could Asian state parties do differently to address this situation? At this stage in the 2020 ITLOS electoral process, the previously set deadline for UNCLOS state parties to nominate candidates (that is, March) has passed. But that deadline was based on the assumption that the state parties’ meeting would be held in June 2020. Due to the pandemic, however, the actual date for the meeting has not been announced. Under Annex VI, Article 4(2), of UNCLOS, the president of the state parties shall invite the state parties to nominate candidates “[a]t least three months before the date of the election” and the state parties shall submit their nominations “within two months.” Thus, what matters under the rules is that the state parties are given sufficient notice before the election to consider the candidates. But nothing would prevent another member of the Group of Asian States from attempting to nominate an additional candidate, and requesting the other state parties to waive the nomination deadline. A state nominating an additional candidate could invoke the unprecedented situation of a delayed meeting to justify the unusual action of a belated nomination. After all, there is no shortage of international law experts in Asia who are either more qualified than or as qualified as China’s 2020 candidate to serve as a member of ITLOS for the next nine years.

In the more distant future, Asian state parties should think beyond the upcoming set of ITLOS elections and consider adopting additional electoral reforms to address this flawed approach. Of course, they might genuinely believe that geographic distribution among the ITLOS judges is a valuable principle and deliberately choose to maintain the status quo of allocating the 21 seats among the five regions. But if so, they should ask themselves the following question: Can the three largest economies in Asia, which are all located in Northeast Asia (that is, China, Japan and the Republic of Korea), effectively represent a geographic region as diverse as Asia and thus be entitled to their own de facto seat on ITLOS? If not, then perhaps the Asian state parties should adopt an alternative arrangement that values intraregional geographic representation, in which each subregion (Southwest Asia, South Asia, Southeast Asia, Northeast Asia and Oceania) is allocated one of Asia’s five seats.

Lastly, there is definitely more that the United States can and should do in this situation. Public remarks like those by Assistant Secretary Stilwell are welcome, but words alone are likely to be insufficient. As is frequently pointed out, the United States is not a party to UNCLOS. Other members of the international community, including China, are well aware of that legal and political shortcoming. In the response to the Beijing reporter’s question regarding Stilwell’s remarks about the upcoming ITLOS election, China’s spokesperson quickly retorted, “So far, the United States has not ratified the UNCLOS, but has always posed as a defender of it.” Whenever the pandemic subsides to a level that the UNCLOS state parties can convene their 2020 meeting and elect the next seven judges to ITLOS, the United States will continue to do what it has done for the previous 29 state parties meetings: that is, attend the meeting in a purely “observer” status. Not only will the United States as a nonparty be ineligible to nominate any of its own well-qualified legal experts to serve on ITLOS and help shape this important body of international law for the next nine years, but it will also be unable to lead a voting bloc against China’s 2020 nominee as a lawful countermeasure. In short, the United States will continue to face consequences for its unwillingness to become a party to UNCLOS—a self-inflicted impediment to U.S. efforts to defend the existing international rules-based order.

But the U.S.’s nonparty status to UNCLOS does not validate the whataboutism that China often seeks to employ in international discourse in order to deflect scrutiny from its own behavior in the international system. More specifically, the U.S.’s nonparty status cannot be allowed to serve as a distraction from the more fundamental point: that China should face consequences for flouting UNCLOS with its ridiculous maritime claims and for violating its obligation to comply with the legally binding South China Sea arbitration. The nonparty status of the United States also does not inoculate the 160-plus sovereign states that are parties to UNCLOS from taking action. Individually and collectively, those 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. And they can seize the initiative on that effort to hold China accountable with the upcoming set of ITLOS elections.