27 October 2016
If Beijing had participated in the ruling and sought a more advantageous position for itself, the verdict may not have been so ignominious. Photo:
If Beijing had participated in the ruling and sought a more advantageous position for itself, the verdict may not have been so ignominious. Photo:

Arbitration setback: Beijing could have avoided the humiliation

Paul Reichler, a well-respected practitioner of public international law, was the lead counsel for Manila when an ad hoc international tribunal rejected Beijing’s claims to disputed waters in the South China Sea.

Last week, Reichler, a partner at US law firm Foley Hoag, achieved another landmark victory as lawyer for Uruguay in a case filed by tobacco giant Philip Morris against the South American country for its strenuous legislation and government-led campaigns against smoking.

Reichler had a triumphant start to his legal career in 1986, not too long after graduating from Harvard Law School with a Juris Doctor degree.

He won a high-profile case filed by Nicaragua before the International Court of Justice in The Hague against his own country, the United States.

The ICJ held that the US violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining the country’s harbors.

Reichler built his distinguished career by defending David against the world’s Goliaths, like when he won the case Bangladesh v. India in 2014 and Mauritius v. the United Kingdom in 2015, both of which were about marine rights disputes.

Many may think that in public international law, major powers couldn’t care less even if they lose a case as the winning party, usually a weaker or smaller nation, can do very little to defend its legitimate rights or stop being bullied.

Reichler has seen such defiance in Washington and Moscow in previous cases, particularly when the Ronald Reagan administration withdrew from the hearings of the Nicaragua case, but as he said, given time these governments will have to return to the negotiation table, and Beijing can’t make itself an exception.

Beijing should’ve participated  

Soon after the humiliating verdict which shot down Beijing’s self-purported historic rights to the disputed waters, the Communist Party’s propaganda apparatus rushed to sell to its people that the arbitration was manipulated by Washington and its henchmen in the International Tribunal for the Law of the Sea (ITLOS) and thus the best response to such a ruling is to shun it.

But how to explain the many precedents in which David faced off with and ultimately defeated Goliaths, like in Nicaragua v. United States, if Washington lorded it over these international tribunals?

What determines the outcome is whether the party involved takes the case seriously.

Moscow, for instance, lost the case involving the Arctic Sunrise ship after it, from the outset, refused to acknowledge the authority of an ITLOS panel following its seizure of the Greenpeace vessel and crew in September 2013.

The ad hoc tribunal unanimously ruled in August 2015 that Russia breached the UN convention.

Standard of proof

Parties involved in international arbitrations have some room for flexibility, like the standard of proof concerning prima facie evidence, so as to have a good claim.

In common law jurisdictions, a more liberal standard, preponderance of the evidence, is normally adopted in civil litigations, that is, evidence will be ruled admissible as long as 51 percent of it is convincible and a party can win the case if its evidence is more plausible than that of the opposite side.

Yet the highest standard for the burden of proof, beyond reasonable doubt, is applied in the trial of criminal cases, where proof will be accepted only if there is no plausible reason to believe otherwise.

In a continental law system, there’s only one standard, one that is similar to the “beyond reasonable doubt” principle, for both civil and criminal proceedings.

International courts are always faced with the challenge, the fragmentation of the standard of proof, as judges are not always from the same jurisdiction and members of any ad hoc tribunal are formed on an impromptu basis.

There can be discrepancies in the standard of proof.

Had it not been for the silly boycott, Beijing could have sought a more advantageous standard for its own when most disputes over ocean space, its uses and resources are non-criminal in nature.

But it gave up its rights, like nominating and appointing judges, altogether.

Manila, as the plaintiff, bears much of the burden of proof, and as I wonder, it would be easier if the standard was based on preponderance of the evidence.

One fact to note is that the president of the South China Sea arbitration tribunal was a judge from Ghana, a common law jurisdiction.

The verdict wouldn’t have been so ignominious if there was a Chinese judge sitting on the panel and arguing for a stricter standard of proof so that Manila may find it harder to make a case for its own.

An ideological cause

Nonetheless, Beijing’s stubbornness and deep mistrust of the international tribunal have an ideological reason.

There’s no rule of law in Beijing’s dictionary. Rather, all judges in China are puppets and so is the cosmetic role of all courts when the Communist Party controls and decides all the rulings.

Likewise, it may think courts elsewhere operate in a similar manner to serve political agendas; an independent judiciary sounds just too contrived for Beijing.

It just can’t put faith in a tribunal for an impartial ruling.

Now I only wonder what if Paul Reichler was a Chinese: will he be hailed a hero or reprimanded for being a traitor, after he helped a foreign government win a case against his own country?

This article appeared in the Hong Kong Economic Journal on July 18.

Translation by Frank Chen

[Chinese version 中文版]

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Read more:

The Hague ruling: Beijing made the bed but refused to lie in it

Famed international lawyer Paul Reichler was the chief counsel for Manila in the Hague hearings. Photo: UN PCA

A China Southern Airlines plane lands at a newly-built semi-military airstrip on Mischief Reef. Photo: Xinhua

Filipino activists rally in The Hague against China’s island-building in the disputed South China Sea waters. Photo: AP

Former full-time member of the Hong Kong Government’s Central Policy Unit, former editor-in-chief of the Hong Kong Economic Journal

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