By Dr. Hon. Lee Hoey Simon
International arbitration requires the voluntary participation of the disputing States, its impartiality is therefore of paramount importance. It must hear both sides in order to achieve the purpose of dispute settlement. Whether the procedures under which an award is rendered are proper and whether the composition of the tribunal is neutral are key to safeguarding impartiality.
The South China Sea arbitration case is fundamentally defective in both dimensions: the tribunal's formation was marred by procedural irregularities, its composition was seriously unbalanced, and the resulting findings were inevitably fraught with errors. In fact, the report New Critique of the South China Sea Arbitration Award, released in Hong Kong on July 13, 2026, systematically pointed out that over the past decade, the award has been generally avoided in subsequent jurisprudence of international judicial and arbitral institutions.
Initiation of proceedings: Abuse of "compulsory arbitration"
Under the two-tier dispute settlement mechanism of "priority of voluntary procedures, supplementation by compulsory procedures" established by Part XV of the United Nations Convention on the Law of the Sea (UNCLOS), the initiation of compulsory arbitration under Annex VII of the Convention is subject to a series of strict legal prerequisites, including that the parties have fulfilled the obligation to exchange views and that the dispute is not among the excluded matters. These preconditions are systematically set out in Sections 1 and 2 of Part XV of UNCLOS, and the absence of any one of them is sufficient to deprive the tribunal of its lawful jurisdictional basis.
The Philippines failed to fulfill the necessary prerequisite of prior and adequate exchange of views, violated the China-Philippines consensus on peaceful settlement through consultations, contravened the provision of the Declaration on the Conduct of Parties in the South China Sea (DOC) that directly concerned sovereign States shall resolve disputes through friendly consultations and negotiations, and violated fundamental principles of international law such as pacta sunt servanda (agreements must be kept) and estoppel. Therefore, when the Philippines unilaterally initiated arbitration on January 22, 2013, it manifestly lacked the legal prerequisites for doing so. The Philippines' unilateral submission of the relevant disputes to compulsory arbitration constituted an abuse of the compulsory dispute settlement procedures under UNCLOS; yet it was accepted for political reasons.
After the proceedings were initiated, China consistently refused to participate—not out of disregard for international law, but as a legitimate assertion that the tribunal manifestly lacked jurisdiction. Nevertheless, the tribunal proceeded with the entire process with only the Philippines participating, seriously violating the procedural justice requirements of international arbitration.
Formation of the tribunal: Orchestrated by Japanese right-wing forces
The formation of the five-member ad hoc tribunal in the South China Sea arbitration was itself fraught with questionable procedural irregularities.
Under the procedure, because China did not participate in the arbitration, the appointment of arbitrators fell to the then-President of the International Tribunal for the Law of the Sea (ITLOS). In 2013, that President was Japanese national Shunji Yanai. This meant that of the five arbitrators, apart from the one appointed by the Philippines, the remaining four were all designated by Yanai.
Yanai's background itself raises serious concerns. He served in Japan's Ministry of Foreign Affairs for over four decades, holding positions including Vice-Minister for Foreign Affairs and Ambassador to the US. He is regarded as a representative of Japan's right-wing hawkish faction. Yanai also served as Chairman of the "Advisory Panel on the Rebuilding of the Legal Framework for National Security" established by Prime Minister Shinzo Abe, playing a significant role in assisting Abe's efforts to reinterpret the right of collective self-defense and challenge the post-World War II international order. It was during Yanai's tenure as ITLOS President that the Philippines unilaterally initiated the South China Sea arbitration. For such a person with a direct conflict of interest with China and distinct political coloring to dominate the appointment of arbitrators, the impartiality of the proceedings was never assured from the very beginning.
Monopoly of the tribunal by extra-regional personnel
The final five-member tribunal comprised: Thomas A. Mensah (Ghana, President), Jean-Pierre Cot (France), Stanisław Pawlak (Poland), Alfred H.A. Soons (Netherlands), and Rüdiger Wolfrum (Germany).
The imbalance in this composition is evident. Four of the five arbitrators came from Western countries, and the sole African arbitrator had long resided in Europe—hardly possessing the broad representativeness required by international law. The tribunal had not a single arbitrator from Asia—yet the case involved territorial and maritime rights and interests in Asia. A tribunal dominated by four Europeans raises legitimate questions about whether it can represent the world's major legal systems, particularly the Asian legal system.
International arbitral tribunals should reflect representation of the world's principal legal systems—this is a basic requirement of procedural justice. The composition of the South China Sea tribunal manifestly failed to meet this standard. In fact, the United Nations, the International Court of Justice, and ITLOS all publicly stated that they had no connection whatsoever with this "tribunal." The arbitral tribunal was never an international court, and there exists no official subordination or affiliation between ITLOS and the arbitral tribunal.
This arbitral tribunal was an ad hoc body temporarily established after the Philippines unilaterally initiated the arbitration, and it would be dissolved after the conclusion of the case. ITLOS, by contrast, is a permanent official judicial institution headquartered in Hamburg, Germany, and forms part of the formal international judicial system under the framework of UNCLOS.
The then-Vice-President of ITLOS, Judge Tullio Treves, had publicly clarified that the five individuals participating in this arbitration acted solely in their private capacities and did not represent the official position of ITLOS in any way. ITLOS has never been involved in the proceedings, participated in any form, provided official endorsement, or ever recognized the validity of this award.
Procedural defects leading to factual errors
The fundamental defects in the tribunal's composition and procedure were directly reflected in serious errors of fact-finding. The tribunal "often pre-set conclusions before collecting evidence from the Chinese side." Such a procedural approach could never achieve rigorous legal analysis, and descended into the adjudicators' "free discretion."
This practice of pre-setting conclusions was particularly conspicuous in the determination of the status of the features. The tribunal disregarded the fundamental fact that the Nansha Islands constitute an integral whole geographically, historically, and legally, and arbitrarily dismembered China's territorial sovereignty over the Nansha Islands. It admitted multiple pieces of evidence that had not been cross-verified and came from single sources, thereby violating the rules of evidence and abandoning its neutral adjudicative stance.
The tribunal also displayed serious inconsistency on jurisdictional matters: on the one hand, it asserted that the case was not essentially about territorial sovereignty or maritime delimitation; on the other, it relied on the negotiations between China and the Philippines concerning territorial sovereignty and maritime delimitation as evidence that the Philippines had fulfilled its obligation to exchange views. On the one hand, it insisted that the DOC was not legally binding; on the other, it relied on the DOC as evidence that the Philippines had fulfilled its obligation to exchange views. This logical contradiction exposed the arbitrariness and lack of seriousness in the tribunal's procedural conduct.
Conclusion
The composition of the tribunal is the first and fundamental element of procedural justice. When a tribunal is formed under the domination of persons with clear political leanings, with a seriously unbalanced composition, and proceeds with only one party participating, the impartiality of its award is fundamentally compromised. Procedural defects inevitably lead to systematic errors in fact-finding. The composition and procedural conduct of the South China Sea tribunal violated the most basic requirements of international arbitration, and its award is consequently legally void from the very outset.
The author is a Member of the Hong Kong Basic Law Committee of the NPCSC, and holds Ph.D. in Law at Tsinghua University
The views do not necessarily reflect those of DotDotNews.
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