Now read about the five foreign lawyers
Today, the Chinese news agency Xinhua posted a piece about the “law-abusing tribunal” that is about to release its decision on the South China Sea arbitration in a matter of hours.
Strangely, though, Chinese officials and the state media have not resorted to name-calling the five foreign lawyers whom the Philippines hired as legal counsel for the arbitration suit.
At the end of this piece, which examines the lawyers’ credentials, Dr. Alfredo C. Robles gives a plausible explanation for Beijing’s profound silence.
Meet the lawyers in the Philippines V. China arbitration
By Dr. Alfredo C. Robles, Jr.
If you had looked at the press release of the arbitration hearings on jurisdiction and admissibility held in The Hague in July 2015, you would have noticed some distinctly unfamiliar faces sitting beside the Philippine Solicitor General in the first row, taking the floor on behalf of the Philippines or intently consulting their documents . These were our legal counsel: Paul S. Reichler, Lawrence H. Martin, Professor Bernard H. Oxman, Professor Philippe Sands QC, and Professor Alan Boyle.
The question was raised whether foreign lawyers could competently defend the Philippines’ case. The Aquino administration’s presidential spokesman defended them in these terms:
[They] are lawyers who have international reputation appearing before the tribunal. We can rely on them… We have the knowledge, but in so far as appearing before international tribunal, you get the best persons you can hire for that…It will be foolhardy for us not to hire experts with experience with appearing before this tribunal.
In a 2002 essay, Jean-Pierre Cot, one of the five judges in the Philippines v. China arbitration, explained the requirements for legal counsel appearing before international tribunals:
“Counsel appearing before such tribunals are expected to deliver perfect or near-perfect performances. Their briefs are to be crisp, yet thorough. Their oral presentation must be exciting, but duly restrained. They are expected to be in full command of the latest developments with regard to a large amount of complex and sophisticated information.”
The appearance during the oral proceedings represents only the tip of the iceberg. The legal team’s role in the drafting of the written pleadings is equally crucial, if not more so.
As explained by French professor Alain Pellet, the legal counsel hired by the state might take charge of the drafting of the pleadings. Alternatively, the state itself might undertake this task, but he believes that this is rarely the case. Given the complexity of the issues raised by the case and the extremely high stakes involved, it is much more likely that the Philippine legal counsel drafted all our written and oral pleadings, notwithstanding the statement made by then Secretary of Foreign Affairs Albert del Rosario upon the filing of the Memorial in 2014.
The “happy few” who can draft states’ pleadings or assist them in doing so and represent states in the oral proceedings constitute an “invisible” bar, “mainly composed of a handful of eminent professors of international law, teaching at the most prestigious universities, and an occasional and highly specialized barrister, backed by a few major law firms.”
Their number is estimated by Pellet – to be at most 15. According to a survey by the Spanish professor Luis Ignacio Sánchez Rodríguez, they are recruited mostly from France, the UK, Belgium, Switzerland, and to a much lesser extent, the US. Rarely do developing countries recruit legal counsel from their own countries or from other developing countries.
The reasons for this situation are as numerous as they are obvious.
Developing countries have few civil servants having expertise in international law or in international legal procedures. These isolated individuals have no competent or experienced national legal teams on which they can rely. The lack of human resources is reflected in the fact that few developing countries are able to produce periodical publications in international law. The exceptions that confirm the rule might be several Latin American countries, which are more successful than most developing countries in sustaining such publications. At present, Brazil seems to be the leader in the field among developing countries, with three publications:
Anuário Brasileiro de Direito Internacional Brazilian Yearbook of International Law;
Revista Brasileira de Direito Internacional, Brazilian Journal of International Law; and
Revista Eletrônica de Direito Internacional, Electronic Journal of International Law.
The Mexicans publish the Anuario Mexicano de Derecho Internacional, Mexican Yearbook of International Law.
The Argentines, the Anuario Argentino de Derecho Internacional, Argentine Yearbook of International Law).
And the Colombians, the Revista Colombiana de Derecho Internacional, Colombian Journal of International Law.
These journals were founded much later than the Indian Journal of International Law and the Revue egyptienne de droit international (Egyptian Journal of International Law), but they have the priceless advantage of being available online for free. Unfortunately, very few scholars outside Latin America are able to read Spanish and/or Portuguese.
The ability to sustain regular publications implies not just the existence of human resources but also the availability of decent libraries. In most developing countries, the penury of human resources is aggravated by the fact that the few specialists do not have at their disposal libraries specializing in international law, which “demand sophisticated doctrinal and jurisprudential collections, as well as records of judicial practice, all covering distinct judicial circuits for both historical and modem developments,” according to Sánchez Rodríguez.
Electronic databases, such as Heinonline, Lexis-Nexis, JSTOR and Ebscohost have gone a long way towards making up for the deficiencies of library collections in the Philippines in all fields. Nevertheless, the databases still have lacunae.
Separate (expensive) subscriptions are required for the outstanding European periodicals, such as:
♦ the Annuaire Français de Droit International (French Yearbook of International Law),
♦ the Revue Générale de Droit International Public (General Journal of Public International Law),
♦ the Journal du Droit International (Journal of International Law),
♦ the Revista Española de Derecho Internacional (Spanish Journal of International Law),
♦ the German Yearbook of International Law , and
♦ the Rivista di Diritto Internazionale (Journal of International Law).
And of course, the journals databases do not contain books, which cost considerably more than paperbacks.
If you are curious, click the reference link attached to Judge Cot’s piece, and you will discover that the cost of the two volumes in which the piece appeared is €508 (approximately $600, depending on the exchange rate), an amount that is higher than the average monthly salary of academics in any field in most developing countries.
Developing countries, as Judge Cot reminds us, are free to choose whoever they wish to represent them: “It is their sovereign right and privilege”.
There is little doubt that the five members of the Philippine legal team are part of the “invisible bar” or the “invisible college of international lawyers”.
Like the judges that compose the tribunal, all of them have decades of international experience as practitioners.
Unlike the judges, not all of them are academics. Unlike the judges, none of them belongs to French, Belgian or Swiss circles. In my view, the reason for this is purely pragmatic. Even if one of the Tribunal’s members is French, the language of the arbitration is English. A French member of the legal team would have had to express himself/herself in English, or else interpretation from and into French would have had to be provided, thus increasing substantially the costs of the proceedings. Since Judge Cot agreed to have English as the sole language of the proceedings, there was no need for French-speaking legal counsel.
A confidential admission by Chinese officials to the South China Morning Post will give you an idea of the reputation of the members of the Philippine legal team: [Chinese] Foreign Ministry officials confided privately that Beijing had thought about recruiting a team of top-flight lawyers to beat the Philippines in court, but discovered the best maritime lawyers had already been hired by rival claimants.
In other words, China thought of hiring the best of the best but the Philippines had beat China to it.
Brief biographies of the members of the legal team are presented in the order in which they appear on the website of the Permanent Court of Arbitration (PCA), which acts as the Registry for the arbitration. Their biographies will be presented using the same categories, where applicable, as those employed for the biographies of the judges in the case: Education, Academic Experience, Publications and Professional Experience.
Reichler is a summa cum laude graduate of Tufts University in Medford, Massachusetts (1969) and a cum laude graduate of Harvard Law School (1973).
B. Professional Experience
In 1979, Reichler was an associate at the Washington-based law firm of Arnold and Porter, when the latter was approached by Nicaragua upon the advice of the Panamanian leader Omar Torrijos. Nicaragua was seeking assistance in recovering some of the assets of the overthrown Nicaraguan dictator, Anastasio Somoza, and in dealing with the US.
Reichler was assigned to represent Nicaragua because of his knowledge of Spanish.
The election of Ronald Reagan in 1980 and the deterioration of Nicaragua’s relations with the US, which was supporting a rebel group seeking to overthrow the government of Nicaragua, caused apprehension in the firm about its representation of Nicaragua.
Reichler resigned and transferred to the Atlanta law firm of Powell, Goldstein, Frazer & Murphy, which was opening a Washington office. In 1984, however, when this firm voted against representing Nicaragua before the International Court of Justice, Reichler left to establish his own firm, Reichler, Appelbaum and Wippmann.
“I felt at the time that I had an obligation to my client to pursue the case and a moral obligation not to refuse to help end the war, which I considered to be illegal, immoral and contrary to the interests of my own country….
I think for the Reagan Administration to flagrantly violate international law as it is doing in Nicaragua is not only wrong in itself but contrary to the best interests of the U.S. It squanders our moral authority as a world leader, and by weakening the system of international law it encourages other states to flout the law with impunity.”
”I have come to believe that international law is the best safeguard against war, destruction and chaos.”
Reichler was part of a team of four that presented the Nicaraguan case before the ICJ, the other three all being international law professors: Ian Brownlie from Oxford, Abram Chayes from Harvard and Pellet from Paris.
In the wake of the Nicaragua judgment on the merits, in which the ICJ declared that the US had violated international law by supporting the Contras, demand for the services of Brownlie, Pellet and Reichler increased considerably.
At present, Reichler is senior partner and co-Chair of International Litigation and Arbitration Department of the Boston-based law firm Foley Hoag , which was established in 1943 and has offices in Washington, D.C. and Paris. Reichler himself is based in Washington, D.C.
For thirty years now, Reichler has represented a large number of states before several types of tribunals, domestic (US) and international.
In the US, he has represented foreign States before the federal and state courts, and is one of the leading experts on litigation under the Foreign Sovereign Immunities Act , which “define[s] the jurisdiction of United States courts in suits against foreign states, the circumstances in which foreign states are immune from suit and in which execution may not be levied on their property, and for other purposes.” His clients have included Bolivia, Chile, Guyana, Kenya, Liberia, Nicaragua, Tanzania, Thailand, and Venezuela.
At the international level he has been legal counsel for states in two types of disputes: investor-state disputes and inter-state disputes.
In investor-state disputes, he has represented states in:
♦ the International Chamber of Commerce (ICC),
♦ the PCA, and
♦ the Stockholm Chamber of Commerce (SCC).
He has been legal counsel for states before permanent tribunals (the ICJ and the International Tribunal for the Law of the Sea, ITLOS) as well as ad hoc international tribunals.
At the ICJ, he was legal counsel for two more cases involving the use of force:
♦ Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), (1999-2005, appointed by Uganda) and
♦ Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), (2008-11, appointed by Georgia).
At the ICJ as well as at the ITLOS and ad hoc tribunals, his cases in the last 15 years involve land and maritime disputes and one environmental dispute:
♦ Guyana against Suriname (ad hoc tribunal under Annex VII of the 1982 UN Convention on the Law of the Sea, 2004-07, counsel for Guyana);
♦ Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) in the ICJ (2005-09, counsel for Nicaragua);
♦ Pulp Mills on the River Uruguay (Argentina v. Uruguay) in the ICJ (2006-10, counsel for Uruguay);
♦ Territorial and Maritime Dispute (Nicaragua v. Colombia) in the ICJ, (2007-12, counsel for Nicaragua);
♦ Aerial Herbicide Spraying (Ecuador v. Colombia) in the ICJ (2008-13, counsel for Ecuador, together with Sands);
♦ Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal in the ITLOS (2009-12, counsel for Bangladesh, together with Martin and Sands);
♦ Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India (ad hoc tribunal under Annex VII of the 1982 UN Convention on the Law of the Sea, 2009-14, counsel for Bangladesh, together with Sands);
♦ Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), (ad hoc tribunal under Annex VII of the 1982 UN Convention on the Law of the Sea, 2010-15, counsel for Mauritius, together with Sands);
♦ Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) in the ICJ (2010-15, counsel for Nicaragua);
♦ Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) in the ICJ (2011-15, counsel for Nicaragua);
♦ Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) in the ICJ (commenced in 2014);
♦ Somalia against Kenya (Maritime Delimitation in the Indian Ocean in the ICJ, commenced in 2014); and
♦ Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire) in the ITLOS (commenced in 2014).
Finally, Reichler served as Mediator, appointed by the Secretary General of the Organization of American States (OAS), in the land and maritime boundary dispute between Guatemala and Belize (2000-02).
“one of the world’s most respected and experienced practitioners of Public International Law, specializing for more than 25 years in the representation of Sovereign States in disputes with other States, and in disputes with foreign investors. He belongs to a select group of elite lawyers with extensive experience litigating on behalf of Sovereign States before the International Court of Justice in The Hague, and the International Tribunal on the Law of the Sea in Hamburg.”
Lawrence Martin is a younger colleague of Paul Reichler. He obtained his bachelor’s degree summa cum laude from Bowdoin College, a small private liberal arts college in Brunswick, Maine, in 1988 and his JD, magna cum laude, from Harvard Law School in 1997.
Martin speaks fluent Chinese.
B. Professional Experience
Martin is at present a partner in Foley Hoag’s Washington, D.C. office and a member of its International Litigation and Arbitration Department. According to the Foley Hoag website, Martin has considerable experience in general civil litigation matters before US courts, including insurance industry controversies, copyright disputes and product liability lawsuits.
By 2004, or a mere seven years after finishing law school, he was already named by Washingtonian as one of Washington’s top lawyers in civil defense.
In the US, he also represents foreign states, such as Bolivia, in litigation before domestic courts.
At the international level, he has represented states in investor-state and inter-state disputes. In investor-state disputes, he has been counsel for states, such as Bolivia and Uruguay before the ICSID.
In inter-state disputes, he has worked with Reichler in a number of disputes involving maritime delimitation and environmental issues submitted to the ICJ, to ITLOS or to ad hoc arbitral tribunals constituted under Annex VII of the 1982 Convention:
Guyana against Suriname (ad hoc tribunal under Annex VII of the 1982 UN Convention on the Law of the Sea, 2004-07, counsel for Guyana);
Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) in the ICJ (2005-09, counsel for Nicaragua);
Pulp Mills on the River Uruguay (Argentina v. Uruguay) in the ICJ (2006-10, counsel for Uruguay);
Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) in the ITLOS (2009-12, counsel for Bangladesh);
Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India (ad hoc tribunal under Annex VII of the 1982 Convention, 2009-14, counsel for Bangladesh); and
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) in the ICJ (2011-15, counsel for Nicaragua)
In 2015, Martin was described by one source quoted in Chambers Global as “exceptional not only in terms of knowledge, expertise of the law, and organizational and managerial skills, but more importantly because of his character, attitude, ethics and advocacy.”
Professor Bernard Oxman
Professor Bernard H. Oxman earned an AB from Columbia College in 1962 and a JD from Columbia Law School in 1965.
B. Academic Experience
In 1977, Professor Oxman joined the University of Miami Law School. He served as Associate Dean of the Law School from 1987 to 1990, and currently is the Faculty Chair of the Law School’s Master of Laws Program in Ocean and Coastal Law. He has been a member of the University’s Faculty Senate since 1996.
In 2008, he was appointed to the Richard A. Hausler Chair at the University of Miami. On the occasion of his installation, he gave a lecture entitled “The United States and the Future of International Law”.
Professor Oxman has published numerous articles and book chapters on the law of the sea and other international law subjects. On the 20th anniversary of the opening for signature of the 1982 Convention, he published an overview of the Convention. The authoritative character of his scholarly views may be deduced from the fact that one of his articles was quoted by a Judge of the ITLOS in a separate opinion in the ARA Libertad case (Argentina v. Ghana), in 2012.
D. Professional Experience
Professor Oxman was legal adviser of the Department of the Navy from 1965 to 1968, then Assistant Legal Adviser for Oceans, Environment, and Scientific Affairs of the U.S. Department of State from 1968 to 1977.
During his years of service with the US government, Professor Oxman was a member from its very first session of the Ad Hoc Committee to Study the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction , established in 1967, and the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction, established in 1968.
This latter Committee acted as a preparatory body for the Third United Nations Conference on the Law of the Sea (UNCLOS III), which the UN General Assembly convened in 1970 and which in the course of 11 sessions between 1973 and 1982, drafted the UN Convention on the Law of the Sea. From 1975 to 1982, Professor Oxman was Vice-President of the US Delegation to the Conference and one of the coordinators of the English language group of the Drafting Committee of the Conference. The coordinators of the six language groups (Arabic, Chinese, English, French, Russian and Spanish) harmonized the views of the language groups and prepared proposals for the Drafting Committee, which was responsible for refining drafts, harmonizing recurring words and expressions and achieving concordance of the text of the Convention in six languages.
The significance of these tasks cannot be underestimated, since the six texts of the Convention are authentic. Professor Oxman and Ambassador John R. Stevenson published reports of the first three sessions of UNCLOS (1973, 1974, 1975) in the American Journal of International Law; while Professor Oxman was responsible for reports of the fourth to the tenth sessions (1976-82). Unsurprisingly, he authored the chapter on UNCLOS III in one of the first major handbooks on the new Law of the Sea, published in French in 1985.
Professor Oxman has testified twice (in 2004 and 2007 before the US Congress in favor of US ratification of the 1982 Convention. No other member of the legal team, or even of the Arbitral Tribunal itself, has such a long and close association with the history of the 1982 Convention, which the Tribunal must now interpret and apply.
Professor Oxman served as legal counsel for Surinam in the Guyana v. Suriname arbitration under Annex VII of the 1982 Convention, concerning the delimitation of Guyana’s maritime boundary with Suriname. In the same case, Reichler, Martin and Sands were counsel for Guyana.
Professor Oxman is the only member of the legal team who has had experience as a judge ad hoc or member of an arbitral tribunal. He was judge ad hoc of ITLOS in two cases:
♦ Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, 8 Oct 03 (2003, appointed by Singapore); and
♦ Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), (2009-12, appointed by Myanmar, with Judge Mensah as the judge ad hoc appointed by Bangladesh).
He was judge ad hoc of the ICJ, appointed by Ukraine, in a maritime delimitation case between Romania and Ukraine (2004-09; the judge ad hoc for Rumania was Judge Cot).
As the University of Miami website points out, he is the only American lawyer ever appointed to serve as judge ad hoc before both international tribunals. At the ITLOS there is no judge of American nationality, for the simple reason that the US has not ratified the 1982 Convention, is not a party to the Convention, and thus does not have the right to present candidates for election to the Tribunal.
Professor Oxman was a member of two arbitral tribunals constituted under Annex VII of the 1982 Convention:
♦ The ARA Libertad Arbitration (Argentina v. Ghana), (2012-13, Judge Mensah was also a member of the Tribunal).
Finally Professor Oxman was head of a Review Panel established under Article 17 and Annex II of the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean with regard to the Objection by the Russian Federation to the Conservation and Management Measure for Trachurus murphyi (CMM 1.01) adopted by the Commission of the South Pacific Regional Fisheries Management Organisation at its First Meeting held from 28 January to 1 February 2013. These were the first proceedings of their kind under the Convention. On 5 July 2013, the Review Panel issued its Findings and Recommendations, and Russia agreed to comply with the Panel’s Recommendations.
Professor Philippe Sands
Professor Sands received his BA from the University of Cambridge in 1982, and his LLM, first class honours, from the same University, in 1983. In the UK the class of degree is based on the average mark (grade) of the assessed work a candidate has completed. The rough percentage for first class honours is 70%, keeping in mind that grading is much tougher in Europe than in the US (or the Philippines, for that matter).
Professor Sands was a Visiting Scholar at Harvard Law School in 1983-84. He has been Member of the Bar of England and Wales since 1985, a Member of the Irish Bar since 2002, and Queen’s Counsel since 2003. In the UK, Queen’s Counsel (King’s Counsel when the sovereign is male) is a barrister who, having practiced law for at least ten years, is given the honor on the recommendation of the Lord Chancellor to earn the right to wear silk gown (‘takes silk’ as it is called) and take precedence over other Barristers in the court.
B. Academic Experience
Professor Sands was a Research Fellow at St Catharine’s College), University of Cambridge (1984-88) and at Kings College London (1988-91). In 1989, he established the Foundation for International Environmental Law and Development, at the School of Oriental and African Studies (SOAS) of the University of London, and was Director of Studies at the Foundation until 1989. At SOAS, which describes itself as “the only Higher Education institution in Europe specialising in the study of Asia, Africa and the Near and Middle East,” he was Lecturer in Law from 1992 to 1996, then Reader in International Law from 1996 to 1999, and finally Professor of International Law from 1996 to 2000. He was Global Professor of Law at, New York University (NYU) School of Law from 1994 to 2003. In 2002, he moved to University College London, University of London, where he is Professor of Laws and Director of the Centre on International Courts and Tribunals.
Professor Sands has a long list of publications to his name. Among specialists he is probably best known for the standard text, Principles of International Environmental Law (1st. ed., 3 vols., 1995), which is now in its 3rd edition (2012).
Two publications of his that have reached a broader audience are:
♦ Torture Team: Deception, Cruelty and the Compromise of Law (2008, translated into French in 2010); and
♦ Lawless World: America and the Making and Breaking of Global Rules (2005; translated into Arabic in 2006 and Chinese into 2007).
The book was described by a reviewer for the British newspaper The Observer as “a penetrating, detailed account of the extent to which those who claim to be spreading global values have ridden roughshod over them.” It covered such headline-grabbing issues as:
♦ the detention of General Augusto Pinochet, the former Chilean dictator whose extradition from the UK was requested by the Spanish Judge Baltasar Garzón in 1998 so that he could be tried in Spain for crimes committed in Chile during his brutal dictatorship from 1973 to 1990;
♦ the formation of the International Criminal Court, in which the US has refused to participate;
♦ the “war on terror”;
♦ the US detention centers in Guantánamo, Cuba, where prisoners have been illegally detained without trial for years; and
In the opinion of a reviewer for the British newspaper The Guardian , the book is “authoritative and ruthless in its analysis of the conduct of the United States and withering about the role of Britain.”
D. Professional Experience
In addition to appearing before English courts, Professor Sands has appeared before many international courts, acting as counsel:
♦ in maritime boundary disputes in the Caribbean, Atlantic and Pacific Oceans;
♦ international claims relating to natural resources, pollution and environmental assessment;
♦ international trade disputes, including agricultural preferences and genetically modified organisms;
♦ cases relating to the immunity of serving and former heads of state from the jurisdiction of national and international courts;
♦ international claims relating to the use of force and allegations of torture and genocide and other violations of fundamental human rights; and
♦ cases relating to individual violations of international criminal laws.
At the European level, he was counsel for Ireland (2003-05) in EC Commission v Ireland) and for Greenpeace, in the case Greenpeace International v EC Commission, in 1998, in the European Court of Justice. The ECJ, one of the main organs of the European Union, has the dual task of “ensuring EU law is interpreted and applied the same in every EU country” and “ensuring countries and EU institutions abide by EU law.”
At the World Trade Organization (WTO), he was counsel for St. Lucia, a small Caribbean island whose main export product is bananas, in the long-running case concerning the EU banana regime (US and others v. EU) in 1997; and counsel for the EU in the cases concerning Genetically Modified Organisms (US/EU, Argentina/EU, Canada/EU), (2003-6).
Professor Sands has appeared as counsel or adviser in arbitrations between (foreign) investors and states under the rules of the ICSID. In nine of the thirteen cases in which he was involved, he was counsel or adviser for the respondent (Albania, Costa Rica, Mexico, Argentina, and Jordan).
He accepted an appointment as ICSID arbitrator, and as a result since July 2007 he has not accepted new instructions to act as counsel in investment treaty arbitration.
In the Special Court for Sierra Leone, in the case Prosecutor v Charles Taylor, he was appointed as amicus curiae by the Appeals Chamber on Head of State immunity under international law (2003). The Special Court for Sierra Leone was set up in 2002 as the result of a request to the United Nations in 2000 by the Government of Sierra Leone for “a special court” to address serious crimes against civilians and UN peacekeepers committed during the country’s decade-long civil war (1991-2002). Its mandate was to try those “bearing the greatest responsibility” for crimes committed in Sierra Leone after 30 November 1996, the date of the failed Abidjan Peace Accord.
The Prosecutor of the Special Court was empowered to bring charges for war crimes, crimes against humanity, other serious violations of international humanitarian law, and certain serious violations of Sierra Leonean law. The creation of the Special Court was a landmark in many respects: it was the first modern international tribunal to sit in the country where the crimes took place, the first to have an effective outreach program on the ground, the first to be funded by voluntary contributions and, in 2013, the first court to complete its mandate and transition to a residual mechanism.
An amicus curia (Latin for “friend of the court”) is a “person or group who is not a party to a lawsuit, but has a strong interest in the matter, and who will petition the court for permission to submit a brief in the action with the intent of influencing the court’s decision.” Rule 103 of the Rules of Evidence and Procedure of the ICC allows a Chamber of the Court to “invite or grant leave to a State, organization or person to submit, in writing or orally, any observation on any issue that the Chamber deems appropriate”. One of the conclusions of the submission of Professor Sands to the Special Court was that “a former Head of State is not entitled to claim immunity ratione materiae [by reason of the matter involved] before an international criminal court in respect of international crimes.”
In the International Criminal Court, he represents Libya in Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case ICC-01/11-01/11 (initiated in 2012). The latter case was brought against the son of the late Libyan dictator and the current head of Military Intelligence (the proceedings against Al-Senoussi were terminated in 2014).
Since the mid-1990s, Professor Sands has appeared as counsel before the ICJ in no less than 11 contentious cases and one request for an advisory opinion. Human rights violations allegedly amounting to genocide in the former Yugoslavia were the core of the Case Concerning the Application of the Genocide Convention (Croatia v Yugoslavia), (1999-2008, counsel for Croatia).
Another, less dramatic and catastrophic repercussion of the collapse of the former Yugoslavia was discussed in the case Violation of Article 11 of the Interim Accord of 13 September 1995 (The former Yugoslav Republic of Macedonia v Greece (2008-2011, Counsel for FYROM).
Two contentious cases dealt with the extremely sensitive issue of the use of force:
♦ Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda (2003-05, Counsel for DRC, Reichler was one of the counsel of Uganda); and
♦ Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), (2008-2010, counsel for Georgia, together with Reichler).
Nuclear testing by France in the South Pacific (Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case (1995, Junior Counsel, Solomon Islands, Samoa, Federated States of Micronesia, Marshall Islands, “intervening” states) was the object of one contentious case, while an advisory opinion was requested on the legality of the use of nuclear weapons (WHO Advisory Opinion on Legality of Use of Nuclear Weapons and UN General Assembly Opinion Request on Legality of the Use of Nuclear Weapons (1995-96, Counsel, Solomon Islands and Samoa).
As is to be expected of the author of the standard text on international environmental law, Professor Sands has appeared before the ICJ in four environmental disputes:
♦ Case Concerning Gabcikovo-Nagymaros Project (Hungary/Slovakia), (1993-97, counsel for Hungary);
♦ Case concerning Pulp Mills (Argentina v Uruguay), (2006-10, counsel for Argentina, while Reichler was counsel for Uruguay);
♦ Aerial Herbicide Spraying (Ecuador v. Colombia), (2008-13, counsel for Ecuador, together with Reichler); and
♦ Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), (2008-14; counsel for Australia, Boyle was counsel for Japan).
Finally two disputes concerned maritime boundary delimitation in the Caribbean:
♦ Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), (1999-2007, counsel for Honduras); and
♦ Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras), (2002-04, counsel for Honduras).
At ITLOS, Professor Sands was lead counsel for St Vincent and the Grenadines in the Case of the M/V Saiga, St Vincent and the Grenadines v Guinea provisional measures phase, Order of 11 March 1998). This was only the second case to be heard by ITLOS; in reality it was a continuation of the first case. At this time Judge Mensah was the President of ITLOS, while Judge Wolfrum was its Vice-President.
The next case in which Professor Sands appeared, as lead counsel for Ireland, was the MOX Case, Ireland v United Kingdom. Provisional Measures (Order of 3 December 2001). At this time both Judge Mensah and Judge Wolfrum were members of the Tribunal.
Professor Sands once more appeared before ITLOS, in the first maritime delimitation case that was submitted to it, the Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), (2009-12). In this case, the two judges ad hoc were Judge Mensah (appointed by Bangladesh), and Professor Oxman (appointed by Myanmar). Sands, Reichler and Boyle were counsel for Bangladesh.
Prior to joining the legal team of the Philippines, Professor Sands appeared as counsel before three arbitral tribunals constituted under Annex VII of the 1982 Convention:
Maritime boundary dispute between Bangladesh and India (2009-14, counsel for Bangladesh, together with Reichler and Martin;
Case concerning the Chagos Archipelago ‘Marine Protected Area’, Mauritius v United Kingdom (2010-15, Counsel for Mauritius, together with Reichler; Judge Wolfrum was a member of the Tribunal).
Ireland v. United Kingdom (“MOX Plant Case”), (2001-08, counsel for Ireland); Judge Wolfrum was the President of the Tribunal, with Judges Cot and Mensah as members). The MOX Plant dispute also gave rise to arbitration between Ireland and the UK regarding Article 9 of the 1992 OSPAR Convention (Convention for the Protection of the Marine Environment of the North-East Atlantic, 2001-03). Professor Sands was once more counsel for Ireland.
Currently, Professor Sands is counsel for Croatia (together with Reichler) in the territorial and maritime dispute between the Republic of Croatia and the Republic of Slovenia (initiated in 2009). He is on the list of arbitrators in the field of natural resources and the environment maintained by the PCA Secretary General. In June 2011, he was appointed to the panel of arbitrators of the International Court of Arbitration for Sport (ICAS), and has been appointed as arbitrator in several cases since September 2011.
Professor Alan Boyle
Professor Alan Boyle obtained an MA in Jurisprudence and BCL, Bachelor of Civil Law (which, despite its name, is equivalent to the American LLM), both from Pembroke College of the University of Oxford, in 1975 and 1976, respectively. In 1979, he obtained the Diploma of The Hague Academy of International Law , which is granted “to students with a proven advanced knowledge of the field, and who pass an examination in either public or private international law.” The Diploma is awarded to only one or two students at the end of each of two periods of the summer courses (private international law and public international law). While the examination is “extremely selective”, the Diploma is not a license to practice (international) law in any jurisdiction.
In 2005 Professor Boyle received his LLD (Doctor of Laws) from the University of Edinburgh.
B. Academic Experience
Professor Boyle started his academic career in 1978 as a Lecturer (the equivalent of the Assistant Professor in the US system) in the Faculty of Laws of Queen Mary College, University of London, where he was promoted to Senior Lecturer (the equivalent of Associate Professor in the US system) in 1989 and Reader (the equivalent of full professor, without a chair) in 1993. In 1995, he moved to the University of Edinburgh as Professor of Public International Law. He has also taught at University of Texas Law School; William and Mary College Law School, Virginia; the University of Paris II (Panthéon-Assas), the University of Paris X (Paris Ouest Nanterre La Défense), and LUISS (Libera Università Internazionale degli Studi Sociali), a private university in Rome. He was General Editor of the International and Comparative Law Quarterly from 1998 until 2006.
Within public international law, Professor Boyle specializes in international environmental law, the law of the sea, the law of treaties, international law-making and the settlement of international disputes. He has a long list of publications: two co-authored books, six co-edited books, 10 single–authored articles, one co-authored article, 12 single-authored book chapters, and two co-authored book chapters.
D. Professional Experience
Professor Boyle has worked regularly as a consultant or as counsel for various governments, international organizations and NGOs on general international law, international environmental law and law of the sea, including maritime boundary delimitation, fisheries conservation and access disputes, jurisdiction over ships, marine pollution and protection of the marine environment, freedom of navigation at sea, international rivers, transboundary environmental impact assessment and environmental damage, state responsibility and liability, and international dispute settlement.
Prior to the Philippines v. China arbitration, Professor Boyle appeared as counsel in six disputes involving the law of the sea or the environment:
♦ Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile / European Community), in the ITLOS (2000, counsel for the EU);
♦ MOX Plant Arbitration arbitration under Annex VII of the 1982 Convention (2002, counsel for the UK, Judge Mensah was the president of the Tribunal);
♦ Pulp Mills on the River Uruguay (Argentina v. Uruguay) in the ICJ (2006-2010, counsel for Uruguay, together with Reichler and Martin);
♦ Aerial Herbicide Spraying (Ecuador v. Colombia) in the ICJ (2008-13,counsel for Ecuador, together with Reichler and Martin);
♦ Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal in the ITLOS (2009-12, counsel for Bangladesh, together with Reichler and Martin; Judge Mensah was the judge ad hoc for Bangladesh, while Professor Oxman was the judge ad hoc for Myanmar);
♦ Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) in the ICJ (2010-13, counsel for Japan, while Professor Sands was counsel for Australia);
♦ Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India (ad hoc tribunal under Annex VII of the 1982 Convention, 2009-14, counsel for Bangladesh, together with Reichler and Martin, Judge Wolfrum was President and Judge Cot a member of the Tribunal); and
♦ Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), (ad hoc tribunal under Annex VII of the 1982 UN Convention on the Law of the Sea, 2010-15, counsel for the UK, with Reichler and Sands on the opposing side and Judge Wolfrum as a member of the Tribunal).
Professor Boyle is an arbitrator on the PCA’s environmental arbitration list and a special arbitrator under Annex VIII of the 1982 Convention.
Professor Boyle has been praised in Legal 500 2014, a firm that “assesses the strengths of law firms in 106 jurisdictions,” as “a notable and prominent scholar-practitioner in the field”, one who “knows the field and the case law.” He is described as being “very creative”, with “lots of ideas”.
In conclusion, it is remarkable that at a time when China is lashing out at both the Philippines and the members of the Arbitral Tribunal, China has spared the international legal team of the Philippines.
Perhaps it is hoping to hire them in the future.