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Beijing: Japanese Judge Means South China Sea Tribunal Is Biased

In a last-ditch effort to discredit an upcoming ruling, China plays the nationality card.

Shunji Yanai, president of the International Tribunal for the Law of the Sea (ITLOS), is pictured prior to the beginning of a hearing on a high-profile protest over Russia's detention of a Greenpeace Arctic Sunrise drilling ship and its crew brought by the Netherlands in Hamburg, Germany on November 6, 2013. Moscow has sparked international protests over its heavy-handed response after two Greenpeace activists in September 2013 scaled a state-owned oil platform to protest against Russian energy exploration in the Arctic. AFP PHOTO / PATRICK LUX        (Photo credit should read PATRICK LUX/AFP/Getty Images)
Shunji Yanai, president of the International Tribunal for the Law of the Sea (ITLOS), is pictured prior to the beginning of a hearing on a high-profile protest over Russia's detention of a Greenpeace Arctic Sunrise drilling ship and its crew brought by the Netherlands in Hamburg, Germany on November 6, 2013. Moscow has sparked international protests over its heavy-handed response after two Greenpeace activists in September 2013 scaled a state-owned oil platform to protest against Russian energy exploration in the Arctic. AFP PHOTO / PATRICK LUX (Photo credit should read PATRICK LUX/AFP/Getty Images)

Tensions over competing territorial claims in the resource-rich South China Sea have spiked in recent months as claimant countries, including China and the Philippines, await an upcoming decision by an international tribunal. That body, located at the Permanent Court of Arbitration in the Hague, is widely expected to rule in the Philippines’ favor. But China has repeatedly stated that it will not accept the upcoming ruling, and has recently engaged in a public relations blitz to gain international support for its position. Now, Beijing is raising an objection unique in the history of arbitration cases of this type: the nationality of the person who oversaw the tribunal’s formation.

In January 2013, the Philippines filed a case with the International Tribunal on the Law of the Sea (ITLOS) challenging some of China’s land reclamation actions and claims in the South China Sea, through which over $5 trillion in trade flows annually. In the five-judge tribunal formed to hear the case, each side has the right to select two judges, and the president of ITLOS chooses the fifth. But China declined to participate in the arbitration, ceding its right to select two of the five panel judges. As a result, then-president Shunji Yanai, a Japanese citizen, chose judges on China’s behalf, according to standard procedure. Chinese officials have objected to Yanai’s having played that role, claiming that Japan’s own maritime disputes with China in the East China Sea make a Japanese national unfit to play a role in a case involving other, unrelated maritime disputes with China. Yanai himself does not sit on the tribunal.

Objections due to Yanai’s nationality first surfaced in 2013, and have recently become more prominent. “Considering the East China sea dispute between China and Japan,” argued a May 11 commentary in Chinese Communist Party mouthpiece People’s Daily, “Shunji Yanai should have avoided [participation] according to the law. But he deliberately ignored this fact and clearly violated procedural justice requirements.” The commentary, written by “Zhong Sheng,” a pen name often employed to present the paper’s official position, did not specify which law had been violated. It claimed that the selected tribunal judges were biased and had “deliberately ignored the rights and interests of China.” On June 8, the Chinese ambassador to Indonesia, Xie Feng, penned an op-ed in English-language daily Jakarta Post noting the tribunal’s president was “a Japanese national” who “went to great pains to form a temporary tribunal,” adding that the panel of five judges, with four from Europe and one from Ghana, “can hardly be considered as universally representative.”

Wang Xining, deputy-director general at the information department at the Chinese Ministry of Foreign Affairs, confirmed that Xie’s perspective mirrors Beijing’s. “We hope there should be no self interest involved in forming an instrument of international justice,” Wang told Foreign Policy via email. He added, somewhat ambiguously, that a “Japanese candidate would be an easy breach of impartiality the existing disputes between China and Japan over certain territorial and maritime issues.”

Emphasizing Yanai’s nationality could serve to further delegitimize the tribunal in the eyes of China’s populace. Many Chinese feel Japan has not sufficiently distanced itself from its militarism and wartime atrocities during World War II, when Chinese suffered under brutal Japanese occupation. Anti-Japanese sentiment in China has flared up in recent years over perceived attempts to whitewash history in Japanese textbooks, visits by government officials to a Tokyo shrine which commemorates dead war criminals, and competing claims over rocks in the East China Sea. Grassroots nationalism also flourishes in China’s online spaces, fueled in part by state-run media, with netizens occasionally lashing out to chastise Japan — or to criticize their own government when it doesn’t take a hardline stance. Lingering fear of Japanese aggression has manifested in the context of the South China Sea as well. In March, Chinese Foreign Ministry Spokesperson Hong Lei invoked Japanese wartime actions to express disapproval of Japanese military cooperation with the Philippines, stating, “Japan once illegally occupied China’s islands in the South China Sea during WWII. We are on high alert against Japan’s attempt to return to the South China Sea through military means.”

U.S.-based South China Sea commenters have dismissed the claim that Yanai’s Japanese nationality influenced the formation of the tribunal. “It’s not a serious argument,” said James Kraska, a professor of international law and research director in the Stockton Center for the Study of International Law at the U.S. Naval War College in Rhode Island. “It bears about as much weight as what Donald Trump said about the judge of Mexican heritage” – referring to the presumptive Republican presidential nominee’s widely-ridiculed claim that a Mexican-American judge could not be trusted to render an impartial decision on a case related to the failed Trump University, due to Trump’s strong stance against illegal immigration. There have been 25 ITLOS cases since the organization ruled on its first case in 1997; but this is the first time, said Kraska, that the nationality of a judge has been used to question a tribunal’s impartiality.

Kraska knew of no evidence that the five judges on the panel are biased towards any party. “None of the guys on the panel have had any sort of obvious political leanings throughout their career,” Kraska told FP. “They are legal technicians. They have spent their entire lives championing the rule of law in the oceans. There is no predictable pattern to their decisions.” He continued, “They are committed, true believers in the value of international law and the law of the sea,” calling them “purists, to a fault.”

Analysts have widely predicted that the tribunal will rule against China; the claim against Yanai is a last-ditch effort to try to discredit the legal proceedings, according to Bonnie Glaser, senior advisor for Asia and director of the China Power Project at the Center for Strategic and International Studies in Washington, DC. Glaser said that she had heard this argument as early as 2013, when the tribunal was formed, but that only recently had it been more widely discussed. “China has tried every possible angle to oppose the tribunal,” she wrote in an email. “First they challenged its jurisdiction. Then they said it was a violation of the [Declaration on the Conduct of Parties in the South China Sea]” – a 2002 agreement between China and ASEAN nations. “They argued that China excluded dispute settlement so it has no obligation to participation. None of these worked,” hence the latest tack. Glaser said she found the latest objection “the most detestable,” and said she considers the tribunal’s judges “the best in the world.”

The judge in question has worked in the international sphere for 45 years. Yanai became an ITLOS member in 2005 and served as its president from 2011 to 2014. Prior to that, he was a career diplomat. He joined the Japanese Foreign Ministry in 1961 and served as ambassador to the United States from 1999 to 2001. The Wall Street Journal described him in 1999 as “blunt-speaking” and “fun-loving,” noting his second marriage to a former geisha. He has also taught international law at Chuo University in Tokyo and lectured on maritime dispute resolution.

Beijing-backed analysts have recently doubled down on their arguments against Yanai. Wu Shicun, president of the National Institute for South China Sea Studies in China’s southernmost island province of Hainan, told FP via email that there is evidence demonstrating Yanai’s bias in favor of the Philippines. “In April 2013, [Yanai] appointed Chris Pinto as the president of the Arbitral Tribunal. Mr. Pinto is [of Sri Lankan] nationality, but his wife is a Filipino,” Wu wrote. Wu also argued that a ruling against China in the Philippines case could be good for Japan because “Japan, through joining the chorus and bashing China, could make itself seem like a ‘good guy’ in East Asia.”

Regardless of how the tribunal rules, China has emphasized that it will not recognize the legitimacy of the decision. ITLOS has no mechanism for enforcement, meaning that China is unlikely to change its behavior in the South China Sea. The only cost China will pay will likely come in the form international censure and a resulting dent in its soft power. By working to discredit the tribunal, Beijing is hoping to reduce that toll as much as possible.

PATRICK LUX/AFP/Getty Images

Bethany Allen-Ebrahimian is a contributing writer at Foreign Policy. @BethanyAllenEbr

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