Lawyer Paul Reichler points to
the area in dispute on a map of South China Sea in his office in Washington, D.C
[Melissa Golden for The Wall Street Journal]
Philippines
Takes China's Sea Claims to Court
A
Washington Lawyer Helps Manila Challenge Beijing's Sea
Claims
Paul
Reichler, a Washington-based lawyer, has spent much of his career representing
small countries against big ones: Nicaragua versus the U.S.; Georgia versus
Russia; Mauritius versus the U.K., Bangladesh versus
India.
His
first big victory made headlines in the 1980s when the International Court of
Justice in The Hague ruled that U.S. support for Contra rebels trying to
overthrow the left-wing Sandinista government of Nicaragua violated
international law.
That's
one reason to pay attention to the case he launched this year at a United
Nations arbitration body: the Philippines versus China.
Lawyer Paul Reichler, who specializes in international public
law, is taking China to court on behalf of the Philippines over a dispute in the
South China Sea. [Melissa Golden for The Wall Street
Journal]
Mr.
Reichler is the lead lawyer representing Manila in its legal challenge against
China's claim to almost all of the South China Sea, signified by the "nine-dash
line"-a U-shaped protrusion on Chinese maps that brushes the coastlines of
smaller states, including the Philippines, Brunei, Malaysia and
Vietnam.
The
Philippines brought the case in January under the 1982 United Nations Convention
on the Law of the Sea, which governs the world's oceans. China is a signatory.
The heart of the case is that the line has no basis under the U.N. convention,
which states that coastal states are entitled to a territorial sea extending 12
nautical miles as well as a 200-mile economic exclusion zone in which they have
rights to fish and extract undersea resources.
"Of
course we're aware of the enormity of taking on a country like China. We'd be
foolish not to" be aware, says Mr. Reichler, a litigator with the U.S. law firm
Foley Hoag.
The
Arbitral Tribunal has appointed a five-person panel of judges and issued a
timetable for handling the case, including a deadline for the Philippines to
submit its evidence by March 30 next year.
It's
the first time that Beijing has been taken to a U.N. tribunal and China is
furious. Most recently, it showed its displeasure by making clear that
Philippine President Benigno Aquino III wouldn't be welcome at a trade event in
southern China in August. The Chinese Foreign Ministry didn't respond to
requests for comment on the arbitration action. But Beijing has said it will
ignore the legal proceedings, without giving any reasons.
China
insists that territorial disputes over islands in the South China Sea should be
settled through bilateral negotiation under its frequently stated principle of
"shelving disputes and going in for joint development." The sea contains
potentially vast reserves of oil and natural gas. In addition, Beijing maintains
that the nine-dash line presents no obstacle to freedom of navigation in a
stretch of water that carries a third of global trade—a major U.S.
concern.
Beijing's
refusal to participate hasn't stopped the case going ahead. It could even speed
its resolution: Mr. Reichler says that if China doesn't take part, the case
could wrap up by the end of 2014. Such cases can otherwise drag on for up to
five years.
To
some skeptics, Manila's challenge is quixotic. Even if the tribunal decides it
has jurisdiction over the case, and then finds in Manila's favor, Beijing could
simply ignore the verdict.
Yet
there are more than legal considerations at stake. The case is also significant
for what it will signify about the way that China views the
world.
China's
self-image is wrapped up in its own sense of victimhood at the hands of
imperialist powers led by Britain starting in the mid-19th century. That, in
turn, has driven a Chinese foreign policy that professes to treat all countries
equally, large or small, rich or poor.
But
now that China is a global player, and dominates its own backyard, neighbors are
asking anxious questions. Will it seek to work within existing international
laws, or try to bend them to suit its purposes? As it acquires a blue-water navy
to project power far from its own shores, will it be more tempted to use force
to settle territorial disputes? And how will it treat smaller countries, like
the Philippines, that feel bullied by China's growing military
might?
Mr.
Reichler is counting on international opinion to sway China's response toward
any judgment that doesn't go China's way. "It's a terrible blow to a state's
prestige to defy a tribunal's decision," he says.
From
the Philippines' point of view, legal action was the last option after diplomacy
failed. China wouldn't budge from its claim to "indisputable sovereignty" over
the whole sea, say officials in Manila, and it was steadily encroaching on
Philippine territory. Last year, Chinese ships fenced off the Scarborough Shoal,
a fishermen's haven just west of Manila. China says the Philippines navy was
harassing Chinese fishermen.
Manila
conducted a global search for legal counsel before settling on Mr. Reichler. "We
wanted the best," says one high-placed Philippine
official.
China
uses history to support its claims to the South China Sea and all its land
features. These date back to its own imperial days centuries ago, when China
treated its neighbors as mere vassals. However, the nine-dash line itself was
first published on a map in 1947 by the Chinese Kuomintang government, and the
Communists inherited it after the civil war that brought the Communists, led by
Chairman Mao, to power.
The
line extends almost to Indonesia, some 900 miles from China's southernmost
territory, Hainan Island. Such a far-reaching claim has no parallel anywhere in
the world.
As
for the islands, rocks and reefs that fall within the line, Mr. Reichler makes a
technical argument in the Philippines' case. The convention rules that a
habitable island is entitled to a 200-mile economic exclusion zone. A rock that
juts out of the sea gets 12 miles. A semisubmerged reef gets
nothing.
Mr.
Reichler's argument is that all the sea features that the Philippines disputes
with China are either rocks or reefs. And, therefore, even if China owns them,
it has only limited rights to the surrounding resources.
His
legal team is pulling together a massive document to support that contention
consisting of aerial photographs, naval charts, hydrology reports and
geographical findings. "I'm not in a position to say how China will react," he
says. "My job is to say [to the Philippines]: 'This is a good case for you to
win or not.'"
Write
to Andrew Browne at andrew.browne@wsj.com
