Jardeleza: How our Sea was won

Before sundown the other day, we received the great news that the Arbitral Tribunal handed down its ruling upholding most of the arguments of the Philippines with regard to the West Philippine Sea, specifically dealing with disputed territorial waters.

This is regarding the West Philippines Sea (the Chinese prefer to call it the South China Sea for reasons that are obvious), which has become a disputed territory due to the surprising claim of China, asserting its latter’s nine-dash line.

Around three years ago, and on the heels of China’s assertions in the West Philippine Sea, the Republic of the Philippines, under the leadership of then President Benigno Aquino, filed a Notification and Statement of Claim against the People’s Republic of China under Annex VII of the United Nations Convention on the Law of the Seas (or UNCLOS).

The arbitral tribunal, according to Associate Justice Francis Jardeleza, has issued its Award agreeing with almost all of our 15 submissions. Justice Jardeleza, who filed the case at The Hague three years ago, mentioned notable rulings that have affirmed the Philippine position:

First, the nine-dash line is contrary to the United Nations Convention on the Law of the Sea (UNCLOS) and therefore has no basis in law;

Second, the Scarborough Shoal and five other reefs named in our submission are rocks that generate no entitlements to an exclusive economic zone or continental shelf;

Third, it was unlawful for China to prevent Filipino fishermen for engaging in traditional fishing at the Scarborough Shoal since the shoal has been a traditional fishing ground for fishermen of many nationalities;

Fourth, the Mischief Reef and Thomas Shoal and Reed Bank are submerged at high tide, and they form part of the exclusive economic zone and continental shelf of the Philippines (they are not even overlapped by any possible entitlement of China);

Fifth, the Reed Bank is a wholly submerged reef and nobody can lay claim on it;

Sixth, China violated its obligations under UNCLOS to protect and preserve the marine environment; and

Seventh, China, without the authorization of the Philippines, has engaged in the construction of artificial islands, installations and structures at Mischief Reef.

It must be recalled that the decision to bring China, an economic and military superpower, to arbitration was not made lightly. In availing of such a remedy, we were very much aware about the possible repercussions on our relations with our Asian neighbors, China included, said Jardeleza. These repercussions would take political, legal, diplomatic or economic forms.

For this purpose, a small team was formed to assist the President by providing the necessary legal groundwork. Jardeleza, who was then Solicitor General, jointed the President’s team, made up of senior government officials. All throughout, the Solicitor General, who is by law mandated to represent the Republic of the Philippines in

international litigations, was the lead lawyer. Francis H. Jardeleza was salutatorian of UP Law Batch ‘74, bar top-notcher and holder of a Harvard LLM degree.

The President’s team then formed a consultative group of international lawyers who are experts in the Law of the Sea. They would give advice on legal approaches in the wake of the escalating West Philippine Sea disputes. Later on, when the decision to file a case against China was made, then Solicitor General (now Supreme Court Associate Justice) Jardeleza led the team in vetting possible international law firms who can represent the Republic in the case. Ultimately, the Republic enlisted the services of Foley & Hoag LLP and Paul S. Reichler, an international law litigator with vast law of the sea experience.

The international legal team would later include other experienced international law and law of the sea experts such as Lawrence H. Martin, also from Foley Hoag; Professor Philippe Sands QC of Matrix Chambers, London and Professor Alan Boyle of Essex Court Chambers, London and Professor Bernard H. Oxman of the University of Miami School of Law.

Upon Jardeleza’s advice, the Philippine government nominated Judge Rudiger Wolfrum of Germany as an arbitrator. When China refused to participate, the Republic, through Solicitor General Jardeleza as Agent, made representations with the ITLOS for the appointment of the Chinese arbitrator, as well as the remaining three arbitrators, in accordance with the rules under the UNCLOS.

On March 30, 2014, the Republic filed its Memorial where, as directed by the Arbitral Tribunal, the Republic “fully addressed all issues, including matters relating to the jurisdiction of the Arbitral Tribunal, the admissibility of the Philippines’ claim, as well as the merits of the dispute.” Although China maintained its non-participation in the proceedings, it published on December 7, 2014, a Position Paper, “intended to demonstrate that the [Arbitral Tribunal] does not have jurisdiction over this case.”

Solicitor General Florin T. Hilbay (UP Law Batch ’99, bar top-notcher and Yale LLM degree holder) succeeded Jardeleza upon the latter’s appointment to the Supreme Court in August 19, 2014. Jardeleza was, however, asked to stay on as adviser to the Philippine legal team.

In April 2015, the Tribunal decided to bifurcate the proceedings and conduct a hearing first on issues of jurisdiction and admissibility. On October 29, 2015, the tribunal rendered its Award on Jurisdiction and Admissibility where it determined, among others, that it had jurisdiction to rule on some of the Republic’s claims.

Later on, hearings on the merits of the case were conducted where Solicitor General Hilbay, among others, presented the Philippine case. Aside from presenting its case on oral arguments, the Republic, through Solicitor General Hilbay, also filed several written submissions in response to certain specific questions from the arbitral tribunal.

In deciding to pursue the case against China, our policymakers considered and weighed expected gains against possible losses. With the Award rendered by the tribunal, it would appear that the country’s gamble has paid off. The country can now go back to the diplomatic table with China, hopeful that there is now a level playing field.

With this Award, issued by a distinguished panel of impartial legal experts, the rights and obligations of the parties under UNCLOS are now clarified.

This Award constitute a potent legal platform as our country moves forward to the political and diplomatic phase of our goal of effectively asserting our maritime entitlements under UNCLOS, said Justice Jardeleza.

Is congratulations in order? Jardeleza demurred and instead replied: “With this legal advantage, the Chief Diplomat and Architect of our foreign policy, President Rodrigo R. Duterte, can now proceed with the necessary tools at his disposal to get the job done.”

In other words, Mr. President, the two SolGens have done their job – and with much success. The ball is now in your court.

Email: dominitorrevillas@gmail.com