Facing an imminent international court ruling widely expected to repudiate its position on the South China Sea, Beijing has been taking a multipronged approach to softening the blow from the verdict — including targeting the nationality of the Japanese judge who oversaw the tribunal’s formation.
The court ruling is on a case filed by the Philippines with the Permanent Court of Arbitration at The Hague that centers on the applicability of China’s vaguely drawn “nine-dash line” South China Sea boundary under the United Nations Convention of the Law of the Sea (UNCLOS).
A decision is scheduled to be announced Tuesday, though China has not taken part in the proceedings and has vowed to ignore the judgment.
Ahead of the announcement, China has stepped up its rhetoric, portraying the Philippines’ claims as “ancient and historic” while labeling outrage over its land-reclamation projects and alleged militarization of the disputed waters as the product of Western and Japanese media “hype.”
But perhaps most surprisingly, it has even alluded to a Japanese conspiracy to steer the decision away from favoring China.
The objections began shortly after the case was filed in 2013, when the then-president of the International Tribunal for the Law of the Sea (ITLOS), Shunji Yanai, was required to select four of the five judges on the arbitration tribunal formed to hear the case.
While each side has the right to select one judge and must agree upon three others, China had ceded its rights by declining to participate in the arbitration. As a result, UNCLOS rules dictated that Yanai — who does not himself sit on the South China Sea tribunal — choose judges on behalf of Manila and Beijing.
According to Chinese state-run media, Yanai’s role in selecting a panel highlighted “bias” in the arbitration process. The reports claimed Tokyo’s own maritime disputes with Beijing in the East China Sea over the Japanese-controlled Senkaku Islands, known as Diaoyu in China, made a Japanese national unfit to play such a key a role in the case.
In an editorial last month in The Jakarta Post, China’s ambassador to Indonesia, Xie Feng, claimed that Yanai, who served as ITLOS president from 2011 to 2014 and Japan’s ambassador to the U.S. from 1999 to 2001, “went to great pains to form a temporary tribunal” that can “hardly be considered as universally representative.” Four of the panel’s five members are European.
This sentiment was echoed in a spate of interviews in Chinese state media and Op-Ed articles published in foreign newspapers over the past two months.
In May, the Chinese Communist Party mouthpiece People’s Daily blasted the arbitrators’ nationality and claimed that the panel members “do not represent global, diverse perspectives, nor do they offer the outlook of different legal systems.”
In the commentary, written under the pen name “Zhong Sheng,” a Chinese-language homonym for the phrase “voice of China” that is often used to express the paper’s views on foreign policy, Yanai was again targeted.
Four of the judges, the commentary said, “were appointed by Shunji Yanai, a biased Japanese” former ITLOS president.
“Considering the East China Sea dispute between China and Japan . . . Yanai should have avoided taking part, according to the law,” the commentary added. “But he deliberately ignored this fact and clearly violated procedural justice requirements.”
The editorial did not cite what “law” or “procedural justice requirements” it was referring to.
Julian Ku, a professor of constitutional law at Hofstra University in New York, said that China’s claims omit an important fact.
“The only reason then-ITLOS president Shunji Yanai was involved is because China refused to exercise its right to appoint a member of the tribunal and to participate in the appointment of three others,” Ku wrote on the influential Lawfare blog published in conjunction with the Brookings Institution.
“Because of China’s boycott of the entire proceedings, Article 3 of UNCLOS Annex VII empowers the president of ITLOS to appoint members of the tribunal if one party refuses to participate. This power accrues to him only because of China’s boycott,” Ku wrote.
Asked for comment on the Chinese claims, Yanai, 79, told The Japan Times in an interview Thursday that “these factors are completely irrelevant to this case.”
“I just happen to be a Japanese, but the annex to the convention provides that in case the arbitrators are not appointed by the parties or by agreement by the parties then the president of ITLOS must do it,” Yanai said. “I followed exactly these provisions. As the president of ITLOS, I didn’t act as a Japanese representative. I don’t represent the Japanese at all in the tribunal. That is quite obvious.”
China could have chosen a Chinese arbitrator for the tribunal, Yanai said, but instead decided to ignore the process.
“So in this case, I had to do the job,” he said.
Asked about the makeup of the tribunal and the number of European nationals on it, Yanai was unwavering on his decision.
“This is a legal body. This is not a U.N. political institution. So the first consideration must be given to the legal capabilities of arbitrators,” he said.
“All (tribunal members) are very knowledgeable people, and people of integrity. And in the international community, this constitution was very well received — except by China.”
Lingering resentment over Japanese militarism and its brutal campaign in World War II remain a sore point in China, and the ruling Communist Party has often harnessed anti-Japanese sentiment to further its goals.
Analysts say that by focusing on Yanai’s nationality and the European judges, Beijing could be working to dilute the authority of the court as it works to bolster domestic approval of its policies in the South China Sea, which it calls a “core interest.”
On June 28, Chinese Foreign Ministry spokesman Hong Lei blasted Japan over what he labeled as a “disgraceful track record” on the South China Sea issue.
Hong said that some in Japan were “anxious to see the world in disorder” and were “running a negative publicity campaign” while “stoking tensions in the region and sowing discord among countries there.”
According to Alex Calvo, a guest professor at Nagoya University’s Law Department, Yanai’s role in the case could put Tokyo in an awkward position.
“Beijing has a point when she stresses the geographical imbalance of the tribunal, and we could say, more generally, the postwar international legal architecture,” Calvo said. “This is clearly a sore point with the Chinese, and they are working hard to set up their own institutions.”
As for Yanai himself, Calvo noted that while the Senkaku and South China Sea disputes are not officially related, they could “cast a shadow over Yanai’s impartiality.”
Still, Calvo said, in terms of black letter law, he saw no reason for Yanai to have excused himself.
“Furthermore, the proper way for China to ask that would be to become a formal party to the proceedings, not through the media,” he said.
Others see the court as bending over backward to accommodate a recalcitrant China.
Citing the early replacement of one judge tapped for the panel over a reported conflict of interest, James Kraska, research director at the Stockton Center for the Study of International Law at the U.S. Naval War College, said Yanai’s conduct had been “eminently fair.”
“Judge Yanai replaced one of his earlier picks once it was discovered that the selected jurist was married to a Filipino national,” Kraska said.
“The change underscores the responsible and fair, unbiased approach by Judge Yanai.
“The idea that being Japanese makes him a biased or incapable jurist is incorrect and goes against the idea of universal standards of justice and rule of law that transcend national identity.”
More pressing, though, according to Nagoya University’s Calvo, is China’s hard-driving push to present the case as unfair. This, he said, could ultimately result in a diminishing of both the tribunal and the UNCLOS treaty.
“Will this be followed by some sort of alternative to UNCLOS?” Calvo said. “I would dare say it will, if China’s relative power keeps rising.”
In a time of both misinformation and too much information, quality journalism is more crucial than ever.
By subscribing, you can help us get the story right.