By Jerome A. Cohen
It was recently reported that Duan Jielong, the Chinese ambassador to Hungary, was elected a member of the International Tribunal for the Law of the Sea (ITLOS). Although the PRC has appointed its ambassador to a land-locked country to be its representative on ITLOS, Duan is a specialist in international law, as he served as the head of the Ministry of Foreign Affairs’ Department of Treaties and Law earlier in his career. His most recent ambassadorial appointment may have been designed to broaden his experience and resume. However, many ironies remain!
What deserves noting is that ITLOS, although named the International Tribunal for the Law of the Sea, does not get to decide all of the most important law of the sea issues, due to the flexible menu of options that UNCLOS provides member states while compelling them to accept compulsory dispute resolution of one kind or other. As some know, the 2016Philippine arbitration award that is finally being propelled to the attention it warrants was not an ITLOS decision but that of a panel of five well-known experts selected in accordance with UNCLOS alternatives to ITLOS. If, as perpetually threatened, Vietnam finally brings itself to initiate an UNCLOS arbitration against China, it, like the Philippines, may decide to avoid ITLOS.
Serving as the PRC’s ambassador to Hungary may not be the most demanding of diplomatic positions, but serving as its representative on ITLOS may seem like a well-deserved vacation, certainly compared to serving as head of the PRC’s Treaty and Law Division, which does have to deal with all law of the sea disputes as well as the multitude of other international law issues in which the PRC is embroiled.
In view of China’s prominence, I don’t think it unwise to have a permanent PRC representative on ITLOS (since the tribunal’s establishment in 1996, there have been three Chinese judges), even while the PRC flagrantly inflicts upon itself the grave wound of contemning the result of the UNCLOS dispute resolution processes to which it committed itself in ratifying the treaty. Even though both the PRC and the United States refuse to submit to the compulsory jurisdiction of the International Court of Justice, it is nevertheless useful to have their perennial able experts on the ICJ. “Hope springs eternal….”
We should recall that a major reason why the United States, unlike the PRC, the Philippines, Vietnam and so many other states, has disgracefully refused to ratify UNCLOS is the US unwillingness to submit itself to the compulsory dispute resolution system that is one of this great treaty’s most distinctive features.
Finally, it is worthwhile yet again to emphasize that the Philippine arbitration award is NOT the product of the Permanent Court of Arbitration in the Hague, which only provided its admirable facilities for the litigation.