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.”