When the government of the Philippines announced last month it was taking China to court over territorial claims in the South China Sea, it was seen by some as a surprising but savvy move — a first step toward establishing some sort of law and order in East Asia’s waters, which, up until now have been a sort of aquatic Wild West, with nations planting flags on rocks, roping off shoals, and building up tiny reefs to stake their claims.
The hearing was to determine the validity of China’s claims to a wide swath of ocean that encompasses waters near the Philippines, Vietnam, Malaysia and Brunei, among other countries. Manila even generated some buzz by hiring D.C. lawyer Paul Reichler to argue its case, a man who’s made his name as a "giant-slayer" in the world of international law for his often-successful track record of suing the U.S. Russia, and Britain on behalf of countries like Nicaragua, Georgia and Mauritius.
Then, on Tuesday, China made clear it had no plans to participate in any international court arbitration. Though the hearing will go on without China’s participation, the decision, some may think, doesn’t bode well for hopes that China might abide by a ruling that doesn’t go its way.
Still, Reichler, who was hired by the Philippines last year, thinks the rising power could come around.
"They’re very smart people," he said in an interview last week. "And I think they might come to understand that in the long run their best interests are served by being a responsible member of the international community."
Reichler’s faith in the power of international law to wrangle even the largest of powers comes from his success suing the United States. He took America to The Hague on behalf of the Sandinista government of Nicaragua in the 1980s, over U.S. support of the Contras, and won — an effort that earned him the ire of figures like John McCain. As a result of the victory – and the international pressure that accompanied it — he says, Congress cut off funding for Contra support.
"It’s a very high cost to prestige to be branded as an international wrongdoer and then not comply," he said.
The decision not to take part in the arbitration is "unfortunate," Reichler said in an email (China has long said it doesn’t want to its territorial conflicts "internationalized"). "They had an opportunity to demonstrate their commitment to the international legal order, to show respect for its procedures, and to agree to be bound by its rules. Had they seized this chance, they would have proven that they are not only a great power, but a responsible one."
But the pressure on Beijing to comply with an unfavorable ruling – even if it doesn’t participate – will still be there, Reichler said.
"To me, China has always denounced imperialism, denounced unilateralism, has denounced violations of the U.N. Charter," he said. "This is an opportunity for China to really show its true colors."