Japanese judge’s tribunal choices biased—China

By: 8 years ago

Philippines arbitration case China maritime dispute arbitral tribunal

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The Japanese judge who oversaw the formation of a tribunal which is set to deliver a decision on the South China Sea has been accused by Beijing of bias.

A front-page report in Saturday’s Japan Times said China has expressed its criticism of the judge in Chinese state-run media and Op-Ed articles published in foreign newspapers over the past two months.

“Perhaps most surprisingly, it (Beijing) has even alluded to a Japanese conspiracy to steer the decision away from favouring China,” the Japan Times report said.

When the Philippines filed the case against China in 2013, Judge Shunji Yanai was the president of the International Tribunal for the Law of the Sea (Itlos), an independent judicial body established by the United Nations Convention on the Law of the Sea to adjudicate disputes.

Both China and the Philippines had the right to nominate one judge to a five-member arbitral tribunal that would be hosted by the Permanent Court of Arbitration and would be independent of Itlos. But China gave up this right after it refused to take part, and this was why Judge Yanai had to choose a judge on behalf of China.

However, an op-ed in the Jakarta Post last month by Chinese Ambassador to Indonesia Xie Feng said the judge “went to great pains to form a temporary tribunal” that can “hardly be considered as universally representative.”

In May, China’s People’s Daily published a commentary saying four of the judges – who are European – “were appointed by Shunji Yanai, a biased Japanese” former Itlos president. Chinese media also said Judge Yanai should have recused himself because Japan has a separate dispute with China in the East China Sea.

Judge Yanai told the Japan Times recently that this was “completely irrelevant.”

“I just happen to be Japanese,” he said, adding that his first consideration on appointing the panel was not nationality but “the legal capabilities of the arbitrators.”