PH lawyer on China: Being 'int'l outlaw' has its price

The Philippines' lawyer in its historic case against China said on Tuesday, December 3, that Manila needs an “impeccable” judgment against Beijing to pressure it to take a "more flexible position" on maritime disputes.

Paul Reichler, the Philippines' lead counsel before an arbitral tribunal at the Hague, hinted China can only do so much to defy a ruling that favors the Philippines.

True, Reichler said, international tribunals have no police force to “make the defendant comply with the order,” but losing parties comply “at least 95%” of the time.

“Part of the explanation is that there is a heavy price to pay for a state that defies an international court order, or a judgment of an arbitral tribunal that is seen, that is recognized, in the international community as legitimate, as fair, as correct, as appropriate,” Reichler said in a forum hosted by the US-based Center for Strategic and International Studies (CSIS) on Tuesday evening, Philippine time.

“There's a price to be paid for branding yourself as an international outlaw, as a state that doesn't respect, that doesn't comply with international law,” said the topnotch lawyer, who has defended sovereign states for over 25 years.

'Evolutionary process'

Reichler explained that soft power involves, among other things, “the state's ability to defend its actions as legal in the international system" that "becomes an important part of the state's ability to influence other states.”

He stressed: “It is important therefore not only for the Philippines to obtain a judgment in its favor, but for that judgment to be seen as impeccable in terms of its integrity, its honesty, its fairness, and its legal correctness.”

“It may be that it takes some time before China adopts a more flexible position,” he added.

“But, at least I would say, it's not unreasonable to think that in the ultimate resolution of this dispute, or these disputes, or parts of these disputes, the fact that the Philippines has a legal judgment in its favor that's recognized internationally as valid and binding and legitimate and correct, will play some role in the evolutionary process toward an acceptable solution.”

The tribunal to hear the case held its first meeting in July. (READ: Hearings on PH, China dispute begin.)

The deadline for the Philippines to submit its written pleading, called a memorial, is on March 30, 2014.

The lawyer said he expects a ruling by mid-2015.

A cum laude graduate from the Harvard Law School in 1973, Reichler is a partner at the 7-decade-old firm FoleyHoag in the United States. He serves as co-chair of its International Litigation and Arbitration Department.

Chambers Global said Reichler "belongs to a select group of elite lawyers with extensive experience litigating on behalf of sovereign states before the International Court of Justice in The Hague, and the International Tribunal on the Law of the Sea in Hamburg."

In 2012, he helped Nicaragua and Bangladesh win in separate boundary disputes.

'Opportunity to compete'

Reichler said he is keen on helping poor countries.

"In a court, or before an arbitral tribunal, a small state that is weaker militarily, economically, commercially, has the opportunity at least to compete on equal terms with a much larger, more powerful state,” the lawyer said.

Reichler said the Philippines arms itself with the following claims before the arbitral tribunal:

  1. “first and foremost,” a declaration against China's controversial 9-dash line;
  2. a determination that Scarborough Shoal is not an island but a group of rocks;
  3. and a similar determination that classifies disputed portions of the Spratly Islands as rocks

"Fundamentally, what the Philippines seeks is a declaration that all of the rights and entitlements in the South China Sea, including the rights to the resources, living and non-living, are governed by the UN Convention on the Law of the Sea (UNCLOS). And under that convention, the 9-dash line is inconsistent and unlawful,” Reichler said.

China uses the 9-dash line, a demarcation mark, to claim virtually the whole South China Sea.

The 9-dash line overlaps with the Philippines' 200-mile exclusive economic zone (EEZ). Under the UNCLOS, the Philippines has the sovereign rights to explore and exploit, and conserve and manage natural resources, among others, within its EEZ.

He said a favorable ruling will entitle the Philippines “to the full enjoyment” of its EEZ.

PH: Call it a rock

Reichler said the Philippines also wants the arbitral tribunal to “determine the status” of the disputed Panatag (Scarborough) Shoal.

“Is it a true island which would generate, like a state with a coastline, a 200-mile exclusive economic zone and continental shelf? Or is it what the convention refers to as a rock, an insular feature that is above water at high tide – which is the definition of an island under the convention – but which is so insignificant that it cannot sustain human habitation or economic life of its own?" he said.

Reichler said the Philippines wants the tribunal to classify Panatag as a group of rocks. He described the rocks there as “barely big enough to support the Philippine flag.”

China, on the other hand, calls the shoal Huangyan Island. (READ: Why China calls it Huangyan Island.)

'ROCK, NOT ISLAND.' A file photo dated May 17, 1997 shows the Philippine flag flying as a team from the Philippine Navy and 3 congressmen from the House Committee on Defense climb the tiny rock of Manila-claimed Scarborough Shoal.

File photo by AFP

How will calling it a rock help the Philipppines?

The lawyer explained that under UNCLOS, an arbitral tribunal, “does not have jurisdiction to determine sovereignty over land features.” It's a law on the sea, after all.

The land dispute, then, will remain at a standstill after the arbitral ruling.

But cassifying Panatag as rocks will, at least, narrow the disputed portions of the sea. This is because rocks don't generate a 200-mile EEZ.

“For the Philippines, it is important to have this feature classified as a rock rather than an island because most of the surrounding waters then would be subject to the exclusive entitlement of the Philippines, and only a small part of the sea would be subject to dispute, ultimately to be resolved whenever sovereignty over Scarborough Shoal is determined,” Reichler said.

Reichler said the Philippines also requested the tribunal to also classify disputed portions of the Spratlys as rocks. He said it is “similar to the objective in regard to Scarborough Shoal.”

The lawyer said the Philippines brought China to court after exhausting diplomatic and political means to settle their dispute. (READ: PH slaps China with 8 facts vs 'baseless' claim.)

China refuses to participate in the arbitral proceedings, and insists on bilateral talks with the Philippines.

Citing the UNCLOS, however, Reichler said once the tribunal issues its ruling, it's game over for the two parties. “It's not appealable, and it is binding.” – Rappler.com

Editor's Note: An earlier version of the story stated that the Philippines' case against China was under the International Tribunal for the Law of the Sea. We have corrected it to refer to an arbitral tribunal at the Hague.

Paterno R. Esmaquel II

Paterno R. Esmaquel II, news editor of Rappler, specializes in covering religion and foreign affairs. He obtained his MA Journalism degree from Ateneo and later finished MSc Asian Studies (Religions in Plural Societies) at RSIS, Singapore. For story ideas or feedback, email him at pat.esmaquel@rappler.com.

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