U.S. lawyer who led Philippines’ case says Beijing’s boycott made his job harder in South China Sea arguments

Reporting from Beijing —  It might sound like the legal team that argued the Philippines’ case against China over claims in the South China Sea had it easy — after all, Beijing refused to take part in the proceedings, declaring them “unlawful” and “unjust.”

But Paul Reichler, the American attorney with the firm Foley Hoag who served as lead counsel for Manila, said China’s absence made the case even harder for him.

“It turns the tribunal, essentially, into attorneys for the other side,” Reichler said in a phone interview Tuesday after the Permanent Court of Arbitration in the Hague delivered a sweeping decision in Manila’s favor. “It’s their job to pretend, essentially, to be China’s lawyers and to try to develop evidence that China would have presented.”

The five-member tribunal was overseen by Thomas Mensah of Ghana; the other four members were Jean-Pierre Cot of France, Stanislaw Pawlak of Poland, Alfred Soons of the Netherlands, and Rüdiger Wolfrum of Germany. All, Reichler said, are experts in the U.N. Convention on the Law of the Sea, a pact to which both the Philippines and China are signatories.

China didn’t boycott the proceedings entirely, Reichler noted. Beijing did formally submit a brief, in December 2014, on the question of whether the tribunal had jurisdiction to rule in the matter. “They made four or five points. It was well-drafted,” he said.

But he didn’t have to respond simply to those points. “The tribunal took that into account … but then they developed a number of other arguments that China might have made” if it were fully participating, he said. “I think we were up against the best lawyers in the world.”

After the tribunal decided that it did have authority to rule in the case, the proceedings moved to the actual questions of merit. Normally, when two sides are arguing before the tribunal, the oral arguments would be the final step for attorneys on both sides.

But in this situation, the tribunal allowed extensive additional written pleadings after the conclusion of the Philippines’ oral arguments. Mainly, those consisted of reports and evidence submitted by Taiwan, which controls one major land mass in the Spratly Islands known as Itu Aba or Taiping Island, Reichler said.

“It’s unheard of,” Reichler said. “If you were simply up against another party, this would not be allowed.”

Taiwan and mainland China are often at loggerheads. The two sides split in the late 1940s after China’s civil war, and Taiwan has been ruled separately since that time, although communist leaders in Beijing consider democratic Taiwan a renegade province that ultimately must be reunited with the mainland.

In this case, though, the interests of Taiwan and mainland China aligned. Taiwan had argued that not only was Itu Aba a rock that is always above water even at high tide, but an island that was naturally capable of sustaining human life. That would entitle it to a 200-mile economic exclusion zone.

Such a zone would extend into an area known as Reed Bank, near the Philippines, where that country had been conducting oil and gas exploration until 2015. In 2011, a Chinese vessel nearly rammed a survey ship in the disputed waters.

Itu Aba, which covers about 0.2 square miles, boasts a 10-bed hospital, a lighthouse and $129 million worth of solar panels, along with a small airport for military use. About 200 Taiwanese, including coast guard personnel, medical workers and scientists, are stationed there.

But the tribunal ruled that Itu Aba would not be naturally capable of sustaining human life on its own, without the Taiwanese improvements and supplies, and therefore is entitled only to a 12-mile maritime zone.

Taiwan on Tuesday night criticized the ruling, calling it “completely unacceptable” and declaring that the tribunal’s “decisions have no legally binding force.”

Taiwan also claimed Tuesday that the tribunal did not “formally invite” it to participate in its proceedings.

“Definitely, Taiwan and China had a common interest in arguing for a 200-mile entitlement zone,” Reichler said. Asked whether he believed China had helped Taiwan make its case to the tribunal, he said: “The possibility of coordination could not be ruled out, but there is no conclusive evidence one way or another.”

China has complained that Manila’s case against it is part of a Western plot. Washington and Manila are longtime allies and recently have stepped up military cooperation.

The People’s Daily, China’s Communist Party mouthpiece, said in a front-page commentary on Monday that “the facts have proved clearly that the Philippines South China Sea arbitration case is completely a ‘trap’ targeting China, which is hyped and manipulated by the U.S., led by the Philippines, and with cooperation from the arbitration courtroom.”

But Reichler, who is based in Washington, dismissed the idea that his involvement was orchestrated by the U.S. government, and said he was chosen because of his expertise arguing these kinds of cases.

In the 1980s, he noted, he helped Nicaragua win a similar case against the United States. “Some people in the U.S. government still hold that against me,” he said.

“The U.S. was surprised when this case was filed” by the Philippines, he said. “They had no idea it was coming.”

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