comscore Defending David against the world’s Goliaths in international court

Defending David against the world’s Goliaths in international court

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BEIJING >> Paul S. Reichler’s first big break came in the late 1970s, when, not long out of Harvard Law School, he was a litigation associate at a blue-chip Washington law firm. The Sandinistas had just come to power in Nicaragua, and the partners did not mind putting an idealistic young lawyer to work full time to recover national assets spirited away by the Somoza dictatorship.

But then Ronald Reagan won the White House, turning Central America policy upside down. Some of the senior partners in the law firm were joining the new administration, which had already made ousting the Sandinistas a major foreign policy goal. Reichler soon faced a choice: Dump the Sandinistas or leave the law firm.

He stuck with the Nicaraguans, and in 1986 won a landmark case for them in the International Court of Justice in The Hague. The defendant was his own country, the United States, which was ordered to stop mining the ports of Nicaragua. The Reagan White House, which had refused to sign the U.N. Convention on the Law of the Sea, ignored the ruling, confident it could withstand charges of violating international law.

Reichler, 68, is now a senior partner with Foley Hoag, with a corner office in the high-rent quarter of Washington he left 30 years ago. Of late, though, he had been back in The Hague, where, in the culmination of a three-year case, he won a sweeping victory this week for the Philippines, when an international tribunal swept away almost all of China’s claims in the South China Sea.

There are a number of similarities to the Nicaraguan brief. Reichler is again assisting a small country, the Philippines, battling a big one. And again, the big country, in this case China, refused to participate and publicly denounced the tribunal, calling it biased and anti-Asian. (The United States did appear in the early stages of the Nicaragua case in the 1980s but then withdrew.) With even more ferocity than the Reagan administration, China has vowed to ignore the outcome.

For Reichler, now a member of a rarefied fraternity of lawyers who represent countries before international courts and tribunals, the current behavior of China is more extreme than the United States in the 1980s.

“The Nicaragua case is an exception, a big exception and a terrible exception,” Reichler said. “I consider the Reagan administration to be an anomaly in terms of respect for international law. The United States does have a history of complying with the judgments of the International Court of Justice.”

The case brought by the Philippines was the first against China in an international court or tribunal in The Hague, although Beijing has been involved in arbitration connected to the World Trade Organization and has complied with adverse rulings, Reichler said.

For outsiders, China’s absence might seem to make the proceedings easier. In fact, he said, the empty chairs in the elegant chamber in The Hague made it more difficult. “In a case like this, the tribunal wants to get it right. Here you have five of the more eminent jurists, and they know there is a lot of interest in the case,” he said. “They know it’s going to be read very carefully.”

So rather than just rely on what Reichler and his team of lawyers and environmental experts presented, the arbitrators conducted their own investigations into the picayune details of the history of the South China Sea, including the depth of water around artificial islands built by China.

“After almost 40 years as a litigator, I know it’s always better to have the other party there. The Philippines was asked at least 10 times more questions as in any other case I’ve been involved in,” he said. “Sometimes in developing their arguments, the tribunal gives better arguments than the other side would have made.”

The son of Joseph L. Reichler, a famous baseball writer for The Associated Press (he got the scoop on Joe DiMaggio’s retirement), Reichler grew up on Long Island, N.Y., infused with a sense of wanting to do good in the world. He was too young to participate in the civil rights movement, but as he was graduating from Tufts University in 1969 he faced the Vietnam draft.

“I knew I wasn’t going to fight against the Vietnamese, so it was Canada, jail or the National Guard.” He served in the National Guard while attending Harvard Law School, with the idea of eventually helping the poor. “I was pretty idealistic in those days.”

When he landed in Washington at the end of the Carter administration, Reichler stood out in the crowd of anti-war activists, journalists and celebrities who hovered around Daniel Ortega, the leader of the Sandinistas, said Joseph Eldridge, who recently retired as the chaplain at American University.

“From the beginning, it was apparent that Paul was cut from a different cloth,” Eldridge said. “He left Washington, D.C.’s equivalent of Wall Street — the ‘suits’ on K Street — to defend a government considered a mortal threat to the U.S. and was palling around with the feared and loathed Daniel Ortega.”

In assembling the case against the Reagan White House, the youthful Reichler knew he needed some gravitas on the team. So he recruited Abram Chayes, a former legal adviser to the State Department and a popular professor at Harvard Law School. Chayes went for the jugular, telling the 15 judges in The Hague with great fervor of the death and destruction inflicted on Nicaragua by the U.S. mining of its harbors. By a vote of 15-0, the court ordered the United States to stop.

Because Reichler was the moving spirit behind the case, the credit for the victory fell largely to him. From there, he carved a career as a progressive lawyer on issues that appealed to him — human rights, territorial sovereignty and cross-border environmental damage, among others — and almost always on the side of the afflicted.

He made a specialty of representing the underdog in cases involving the U.N. Convention on the Law of the Sea, winning cases for Mauritius (against Britain) and Bangladesh (against India). A third case, Somalia against Kenya, is pending.

In a different arena, just four days before the China decision, he won an arbitration case for Uruguay, where strict tobacco control laws were challenged by Philip Morris International.

When a U.S. human rights group asked him to represent Ibrahim al-Qosi, one of the early captives in Guantanamo Bay, Cuba, he had no hesitation, he said. Qosi had fled with al-Qaida fighters from Tora Bora in Afghanistan and was accused of providing material support — cooking and driving — to terrorists.

During more than a dozen visits to Guantanamo, Reichler negotiated with the U.S. military commission for a plea bargain that allowed Qosi to serve a reduced sentence. He was returned to Sudan in 2012.

He has no qualms about defending the al-Qaida sidekick, even as Qosi has recently surfaced on the group’s propaganda videos. “In the early years, the conditions and treatment at Guantánamo were appalling and really contrary to American values,” he said. “I believe in those values, and I believed in fighting for them in representing al-Qosi.”

When the Philippines decided its negotiations with China over its disputes in the South China Sea had reached a dead end, the foreign secretary, Albert del Rosario, also a lawyer, decided on international arbitration.

Del Rosario said he scoured the world for lawyers who would be unfazed by taking on China, and finally recommended Reichler to the president, Benigno S. Aquino III.

China has staked out an uncompromising position on The Hague’s ruling, vowing not to accept, recognize or execute the judgment, making it a renegade, in the eyes of many, when it comes to accepting legally binding international decisions.

Just as in the Nicaragua case, there is no mechanism to enforce the court’s order. But there is hope that, as in the 1980s, the ruling may lead the way to a settlement.

In the face of the Reagan administration’s defiance, the 1986 decision helped galvanize congressional opposition and stiffened the resolve of Central American governments to seek an end to the war in Nicaragua.

“This could lead them in six months or a year or more to look for a way to settle the dispute with the Philippines,” Reichler said, “which would mean accommodating themselves to the final judgment in a significant way.”

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