Questions of neutrality: China takes aim at judges in South China Sea case

PUBLISHED : Monday, 11 July, 2016, 9:18am
UPDATED : Monday, 11 July, 2016, 4:05pm

Chinese officials and media have questioned the neutrality of judges handling the South China Sea case initiated by the Philippines.

Fire has been focused on the person who picked the arbitrators – Japanese judge Shunji Yanai, who has been branded a “rightist” and “unfriendly to China”.

Foreign Vice-minister Liu Zhenmin questioned the “procedural justice” of the appointment and the operation of the tribunal in an article published in the Communist Party mouthpiece magazine Qiushi last Monday.

China has refused to take part in the proceedings, and in its absence, four of the five arbitrators were appointed by Yanai, who at the time the case was filed in 2013 was president of the International Tribunal for the Law of the Sea (ITLOS), established under the UN Convention on the Law of the Sea. The other one was named by the Philippines.

Liu said Yanai should have avoided involvement given the territorial and maritime disputes between China and Japan in the East China Sea, and Tokyo’s attempts to involve itself in the South China Sea issue.

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The judges Yanai appointed included one who had ruled against a party holding a position similar to China in a previous case, Liu added. “Leaving aside the obvious violation of procedural justice, we can hardly make a better explanation of Judge Yanai’s motivation and purpose other than that he did it on purpose,” Liu said.

South Korea also expressed its concerns over Yanai’s presidency of ITLOS as it also has territorial disputes with Japan

Yanai has long been a figure of scorn among nationalist Chinese. A commentary by Xinhua described Yanai, a former senior Japanese foreign ministry official who also served as the country’s ambassador to Washington, as a “typical rightist, hawkish figure”.

In 2007, during Shinzo Abe’s first term as Japanese prime minister, Yanai served as chairman of a panel set up to advise Abe on his plan to revise the constitution to allow military action overseas. “South Korea also expressed its concerns over Yanai’s presidency of ITLOS as it also has territorial disputes with Japan,” Xinhua said.

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Soon after the appointment of the tribunal, Yanai told Japanese broadcaster NHK that the islands of Japan were under enemy threat, according to a research report by the Chinese Initiative on International Law, a Hong Kong and Hague-registered NGO whose members are legal professionals and academics.

Although Yanai did not explicitly name the “enemy”, such a statement was clear enough for China to raise concerns over his impartiality in the case, the report said.

In his article in Qiushi, Liu also cast doubt on the make-up of the tribunal, saying none of the five judges – one African and four Europeans – had knowledge of the history and international order of ancient East Asia.

But Yanai’s involvement could have been avoided. If China had decided to take part in the proceedings, it could have named one of the tribunal’s arbitrators and jointly appointed three others in agreement with the Philippines.