Category Archives: South China Sea

Throwback: Remarks made at a University of Malaya forum on the Lahad Datu, Sabah incident (2013)

On March 22, 2013, the University of Malaya hosted a forum on the Sabah question in the wake of the Lahad Datu incident, in which around 200 followers of the Sultan of Sulu launched an attack, purportedly to enforce the old Sultanate’s ownership of portions of what used to be called North Borneo.

I, and Prof. Julkipli M. Wadi of the Islamic Studies program of the University of the Philippines Asian Center, were the Philippine representatives in the conference, in which senior Malaysian scholars who prepared the historical case for Malaysia’s successful prosecution of the 2002 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) before the International Court of Justice (ICJ) were our main interlocutors.

The Philippines intervened in that case, seeing how its outcome may affect its own claim over Sabah, an oil-rich region that, with Sarawak, make up for 60 percent of Malaysia’s petroleum production. While the ICJ rejected the Philippine intervention, it stated that it recognizes that there is such a Philippine claim.

I recalled this forum after the exchange of diplomatic notes in the last few weeks between the Philippines and Malaysia over Sabah. This has to do with submissions made by Malaysia to the UN on its claim for an extended continental shelf, which are anchored on baselines marked out along Sabah’s coasts, as well as on the Philippines’ Spratly Islands claim, which intersect at some points with Malaysia’s own.

History indeed remains such a powerful force in the trajectories of nations and peoples. It cannot be denied; it must be properly addressed. Yet, as can be expected, such a complex issue cannot be adequately covered by a discussion of only a couple of hours. In that forum I decided to limit my discussion to only three points, the first two being on the strongest arguments Malaysia may have to assert its sovereignty over Sabah, and the last one, on the Lahad Datu incident proper.

Even so, I hope that my remarks here (a slightly edited version of what was delivered), while being an abbreviated take on nearly a century and a half of historical contestations, somehow serve to illuminate important points on the continuing territorial contestation.

…..

We are especially honored to be sitting at the same table with very accomplished senior Malaysian academics, Professors Mohamad Abu Bakar and D.S. Ranjit Singh. That they have agreed to dialogue on this all-too important topic  with us more junior scholars on the Philippine side speak  volumes about their humility and magnanimity. For that we are grateful.

This is very much needed, as  a highly emotional topic such as this is bound to a lot of  misunderstanding. For starters there is widespread belief that the Philippine claim embraces the entirety of Sabah. It does not, but only about a third of what is now Sabah.

Given the limited time available and the broad range of topics that may fall within the ambit of the present discussion,  I will deal only  with a  focused resume of  important legal questions relevant to our present discussion, in the hope that these may serve as a springboard for a fruitful and enlightening discussion this morning.

Indeed what we have seen in Lahad Datu  is the powerful resurgence of historical memory at a time when the discourse of a modernizing or a modern state has seemed all too pervasive. In that sense, history may overshadow the legal aspect to the dispute. Nevertheless, we must discuss the legal side, for a fuller view of things.

First,  I will deal with what I consider to be the most salient of the international legal issues attendant to the territorial dispute between the Philippines and Malaysia over a portion of North Borneo.

The second, I will then discuss key points of the claims to historic title by the Philippines that is not often given the attention they deserve. 

Finally, I will then deal with the way Malaysian authorities have  tackled the Sultanate of Sulu’s so-called Royal Security Force.

My first point: What the Philippines must effectively address in its claims to historic title over Sabah is the claim  by Malaysia to the right to self-determination, which is a jus cogen norm subject of  erga omnes obligations.

In his separate opinion to the Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) case before the ICJ in 2002, ad hoc judge Thomas Franck had this to say, in his rejection of the Philippine intervention:

Accordingly, in light of the clear exercise by the people of North Borneo of their right to self-determination, it cannot matter whether this Court, in any interpretation it might give to any historic instrument or efficacy, sustains or not the Philippines claim to historic title. Modern international law does not recognize the survival of a right of sovereignty based solely on historic title; not, in any event, after an exercise of self- determination conducted in accordance with the requisites of international law, the bona fides of which has received international recognition by the political organs of the United Nations. Against this, historic claims and feudal pre-colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium.”


This is strong language, with the tenor of definitiveness. Of course, it should not be forgotten that this is the opinion of the Malaysian-nominated judge to the ICJ in this case. Yet, while it is not part of the majority opinion, in many ways it reflects contemporary thinking in international law on the weight of historical claims over the exercise of self-determination. The ICJ’s pronouncements in Barcelona Traction,  East Timor and Wall Opinion cases have indeed acknowledged the binding nature of this by now well-recognized principle of self-determination. 

The question for the Philippines, however, is whether the factual characterization by Judge Franck of the exercise by the people of North Borneo of this right  is borne by historical reality.

First, from the very beginning, the Philippines committed itself to welcome the creation of the new state of Malaysia subject to the final outcome of its claim over Sabah. This is clearly supported by the following:

It is important to note that these are not mere unilateral declarations but are tripartite and bilateral documents that are binding upon the signatories. In the case of the Joint Statement, they all agreed that the Philippines will continue to pursue it claim even after the inclusion of Sabah in the Malaysian Federation. In the case of the 1966 joint Communique, Malaysia without a doubt, by its consent to it, forfeited any advantage it might have acquired through the UN ascertainment of 1963.                                                                                            

This leads me to the next point under this section.

  1. The Report and Recommendations  of the Conference of Foreign Ministers of the Federation of Malaya, the Republic of Indonesia and the Republic of the Philippines to their respective Heads of Government, dated 1 June 963.  What is important in this document, especially Para. 12, states that both Malaysia and Indonesia recognized the Philippine position that it had a right to pursue its claim according to international law and the peaceful settlement of disputes and all three agreed  that the inclusion of North Borneo in the federation would not prejudice  either the claim or any right arising from it.
  2. The Manila Accord of 31 July 1963, signed by President Macapagal, President Sukarno and Prime Minister Tunku Abdul Rahman, adopted in toto the report of the Foreign Ministers earlier referred to.
  3. The Joint Statement of  5 August 1963 by the Three Heads of Government, especially its para. 8, which referred to the Manila Accord, and reiterated their joint view that they agreed to seek a just and expeditious solution to the dispute between the British government and the Philippines over Sabah through negotiations, conciliation, arbitration or judicial settlement, or other peaceful means of resolving the issue. In addition, they affirmed that they take cognizance of the Philippine claim to Sabah “after the establishment of the Federation of Malaysia as provided under para. 12 of the Manila Accord, that is, the inclusion of Sabah in the Federation of Malaysia does not prejudice either the claim or any right thereunder.”
  4. In 1966, when relations between them normalized, Malaysia and the Philippines, in a joint Communique of 3 June 1966, “agreed to abide by the Manila Accord of 31 July 1963 and with the Joint Statement accompanying it, for the peaceful settlement of the Philippine claim to Sabah.” they further agreed that to the need to sit together to clarify the claim and reach a satisfactory resolution to the issue.
  5. And then, following the proclamation of the creation of the Federation of Malaysia on 16 September 1963, Manila and Kuala Lumpur engaged in  a series of exchanges of Joint Communiques, aides memoirs, Notes Verbale or diplomatic notes, all expressing the sense that both parties have remained committed to the terms of the Manila Accord of 1962. These exchanges ran from 1964 to 1968. 

From the very beginning, the Philippines has demanded that any referendum in Sabah on the question of its inclusion in the Malaysian Federation be authentic and bona fide, and under circumstances that ensured  the free and enlightened expression of  the Sabahan’s will.

But the so-called Sabah referendum was anything but a representative referendum.  It’s subject matter was actually only the election of local officials. The question of whether the people of Sabah wished to remain with Malaysia or to join the Philippines was not at all asked in the ballots issued to voters.

Moreover, much to the embarrassment of UN officials, Malaysia announced the date of the creation of the federation even before the results of the  so-called referendum could be released, as if it had already been predetermined.

In the wake of the Lahad Datu incident, the Malaysian government made the claim that two-thirds of the people of Sabah agreed to be part of Malaysia in 1962.

Sabah opposition leaders like Jeffrey Kitingan  however dispute this, arguing that what actually took place was a referendum of less than four percent of the people. If at all, Kitingan’s statement confirms the Philippines’ position from the very beginning.

Moreover, he also argues that all the relevant parties, including the Sabahans, should find a peaceful solution to the dispute under the ambit of  the United Kingdom and the United Nations. 

In any case, today’s adamant refusal by Malaysian authorities to consider a joint submission with the Philippines on the Sabah question to an international tribunal is a complete turnaround from its previous position on the matter. 

They cannot however, deny documents to which Malaysia was a willing party and that are binding under international law.

Allow me now to discuss my second point. In the Sipadan and Ligitan case, the ICJ denied the Philippine bid to be allowed to intervene, saying it did not show any specific legal interest in the dispute. 

However, what proved important to the Philippines is the declaration by the ICJ that it recognizes the existence of the Philippine position on Sabah.

This was the very first time the Philippines was able to articulate its claim to Sabah before an international tribunal, although the Court ruled that its claim was not at issue in the proceedings. What exactly is this claim by the Philippines?

As we argued in the Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)ours “is a territorial claim on a portion of Sabah which properly belongs to the Philippines on the basis of a sound title jure gentium and which Malaysia is improperly occupying on the basis of a faulty title which had been transferred to it by a prior faulty title holder.” Indeed, the Philippines is not claiming all of Sabah or contesting its political legitimacy. We are simply claiming a piece of territory in North Borneo on the basis of a clear chain of title.

At its heart is the claim that the1878 contract entered into between the Sultan of Sulu and the prospectors Dent and Overbeck is one of lease and not of transfer of sovereignty. 

This lease contract was later passed on by the prospectors to the British North Borneo Company (BNBC), which in turn,  sold its rights under the contract to the British Crown. As in international law, sovereignty can only be ceded to sovereign entities or to individuals acting for any sovereign entity Overbeck and Dent did not have the power to pass on to BNBC sovereignty over the properties of the Sultanate of Sulu over portions of North Borneo, they being neither sovereign entities nor individuals acting for any sovereign entity. 

In fact, in  1903, the BNBC would sign with the Sultanate of Sulu a confirmatory Deed to the original terms of the 1878 lease.

From 1878 to just before the1946 Cession, the British Crown has always recognized the 1878 contract as no more than a lease.  The British Foreign Minister, Lord Granville,  assuring the Spaniards that the BNBC is not acquiring dominion and sovereignty in North Borneo, stated thus:

The Crown assumes no dominion or sovereignty over the territories occupied by the company nor does it purport to grant to the Company any powers of government thereover; it merely confers upon the persons associated the status and incidents of a body corporate and recognize the grants of territory and the powers of government made and delegated by the Sultan in whom the sovereignty remains vested.

The British Foreign Minister would go on to say the BNBC was merely an administrator. To the same effect,  the Prime Minister, Mr. William Gladstone, in the debates in the House of Commons,  gave an important speech. 

Thus Malaysia acquired no more than a derivative title from the British crown, which could not be any better than what the BNBC acquired from Overbeck and Dent.

And Malaysia’s continuing payment of pajak to the heirs of the Sultan of Sulu, on the basis of the 1939 probate  of the will of Sultan Jamalul Kiram by North Borneo Chief Justice Macaskie, in the amount of 5, 300 dollars annually, further affirm the Philippine position.

The Chief Justice, in his decision dated18 December 1939, thus said:

     It is abundantly plain that the successors in Sovereignty of the Sultan of Sulu are the Government of the Philippine islands, but Mr. De Leon contends that the decision of the Philippine courts in the administration suit relating to the late Sultan’s estate precludes that government from asserting any claim to the cession monies. In my view, this is correct. The Philippine government allowed Sultan Jamalul Kiram to enjoy cession monies as a private person sine 1915; they have made no claim on his death and by a judgment  of a Philippine court recognized the right of the private heirs of the Sultan to receive the cession monies. (based on the Maxwell-Gibson translation of 1878)

Justice Macaskie here has two aspects of the question in mind. First, he recognizes that there are rights to sovereignty which now pertain to the Government of the Philippines and there are proprietary rights that accrue to the heirs of the Sultan of Sulu.

This distinction may provide an alternative that could be most beneficial to all concerned.  Of course, there is also the  option of the Philippine government waiving the sovereignty  question, but pursuing its right to reparations over the loss of territory in a process that, from its perspective, was inequitable, even legally anomalous. Given the limitations of this forum, I’m afraid these options will require further elaboration best reserved for another occasion.

My third point : on the current situation in Lahad Datu, the question of the arrested members of the RSF and Filipinos caught in the cross-fire in Sabah

Please allow me to take this opportunity to bring to your attention international legal obligations that Malaysia and the  Philippines need to observe in dealing with the Lahad Datu incident.

According to the Swiss arbitrator Max Huber in the Las Palmas case, one state’s  sovereignty over its territory comes with the concomitant obligations towards the rights of other States: 

Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfil this duty. Territorial sovereignty cannot limit itself to its negative side, i.e. to excluding the activities of other States; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum of protection of which international law is the guardian. 

In other words, the fact that one has sovereign claims over a piece of territory does not entitle it to wanton ill-treatment of foreigners found within that territory, even assuming for the sake of argument that these foreigners are alleged to have committed acts inimical to the interests of the state. Thus Malaysia has obligations under international law to accord the 200 or so followers of the Sultan of Sulu with the rights protections.

Thus,  I view with much trepidation the refusal by Malaysian authorities to allow Philippine consular officials to exercise their duty to provide consular protection to arrested members of the Royal Sultanate Security Force under the terms of Art. 36 of the Vienna Convention on Consular and Diplomatic Protection. 

In both the La Grand and Avena Cases, the ICJ has laid down the positive duty of states to accord consular privileges to sending states whose nationals have run into trouble in the jurisdiction of the receiving states.  The right of a state to claim rights for its nationals abroad is referred to as “diplomatic protection”. Here, the duty of the state is to ensure that states treat their nationals abroad in a manner that complies with human standards recognized under the International Covenant on Civil and Political rights, among others documents.

Thus, it is to the interest of both the Philippines and Malaysia that the rights of the Sultan of Sulu’s followers arrested in Sabah are assured and accorded rights guaranteed under international law.

Thank you.


Postscript:


The full legal claim by the Philippines over Sabah (North Borneo) has been declared by its agent, Professor Merlin M. Magallona, in its intervention in the Sipadan and Ligitan case. Click here for the transcript of the oral proceedings before the ICJ, where Professor Magallona details for the ICJ’s appreciation the Philippine claim,

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Filed under Colonialism, Decolonization, International Court of Justice, International Law, Legal History, Sabah, Sabah claim, South China Sea, Sultanate of Sulu, Uncategorized, UNCLOS

Suing China before the ICJ over COVID-19

Peter Tzeng of Foley & Hoag (the law firm behind our victory against China in the SCS arbitration) writes this excellent thought piece on suing China before the International Court of Justice.

We all know China’s usual stance on international litigation” : stay away from it, when it goes against your interest. And because state-to-state litigation in international law is pretty much a mirror of its largely consent-based system, the challenge is to find exceptional grounds against the general rule.

Here Tzeng discusses possible grounds for compulsory jurisdiction within the World Health Organization Charter, notably Article 75, which provides: “Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice. He links here too an opinion piece I wrote on the question last March 22 for the Philippine Daily Inquirer, pointing to China’s abject failure to provide timely notification on the outbreak under the World Health Organization International Health Regulations (2005).

I would add a “catch-all” (and admittedly novel) argument to his proposal, under the law of state responsibility: that given the scale and effects of this pandemic — nearly all 193 countries affected, so far — perhaps an argument can be made from general international law that China has no choice but to arbitrate (cf Art. 42 of the ARSIWA).

The safety, security and health of the world is a fundamental and common interest of nations that a breach in IHR (2005) obligations triggers compulsory jurisdiction.

After all, its intentional and willing breach of such obligations under Art. 6 and 7, given the nature of the contagion, resulted in mass deaths around the world, and counting, not to mention massive disruptions in the economic, social, political, and religious life of billions around the world.

I will expound on this approach in another post.

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Filed under China, COVID-19, International Court of Justice, International Law, South China Sea, State, State Responsibility, Uncategorized, WHO

Commentary: Indonesia’s New Year’s message to China over Natunas dispute: A game changer?

By Romel Regalado Bagares

A statement issued on  New Year’s Day by the Indonesian Ministry of Foreign Affairs against alleged Chinese encroachments over the Indonesian Exclusive Economic Zone (EEZ) in the Natunas may prove to be a diplomatic and legal game changer in the increasingly volatile South China Sea.

For the very first time, a third party Association of Southeast Asian Nation (ASEAN) member- state invoked the landmark 2016 arbitral ruling in the South China Sea case filed by the Philippines three years earlier against Chinese expansionist moves in the region.

Indonesia’s broadside came following alleged incursions by Chinese coastguard vessels in the Natuna Sea, which lie nearly 1,100 kilometers south of the Spratlys in the South China Sea.  It features an archipelago of 271 islands and resource-rich waters.

China claims the Natunas is subject to its jurisdiction  under the UN Convention on the Law of the Sea  (UNCLOS) as “relevant” waters that had been visited by Chinese fishermen since time immemorial.

A blunt rebuff

The Indonesian MFA however said the Chinese claim is without any legal basis under the UNCLOS, adding that its claims of historic rights have all been repudiated by the Permanent Court of Arbitration’s 2016 ruling.

In addition, Indonesia bluntly rejected any suggestion of bilateral talks with China to delimit what the latter says are overlapping maritime jurisdictions, as there are none to speak of.  .

“Based on UNCLOS 1982, Indonesia does not have overlapping claims with the PRC [People’s Republic of China] so that it is not relevant to have any dialogue on maritime boundary delimitation,” the four-paragraph Indonesian statement said in part, according to a rough translation of the original Bahasa.

Too, under UNCLOS rules, recognition by Indonesia of any maritime overlap forecloses any resort  to the landmark treaty’s compulsory dispute mechanisms successfully used by the Philippines to bring China to arbitration, despite the latter’s fierce objections.

Thus,  the Indonesian statement may also be  sending China a subtle signal that any further unwelcome acts in the Natunas  may force Indonesia’s hand to steer for a direction Beijing would not want to take itself – yet another arbitration case where it will have little control of the outcome.

China appears to expand the exception outlined by PCA to the UNCLOS regime that allows traditional  fishing in territorial waters by competing claimants (as it so held on the question of Scarborough Shoal claimed by both the Philippines and China).

But notably, the Arbitral Court stopped short of saying traditional – or subsistence – fishing may also apply to the EEZ, a ruling that comports with established international norm on the question.

What UNCLOS does allow in the EEZ is fishing for the “surplus catch” by other states outside of the coastal state’s Total Allowable Catch (TAC), a scientific measure of that state’s fishing capacity, but only with the latter’s consent.

Ironically,  during the UNCLOS negotiations, China  itself had questioned the allotment of a surplus catch in the EEZ  for other states, saying that developing countries should be allowed to keep all fishery resources for itself,  as noted by the PCA in its judgment on the Philippine arbitral case against China.

In any case, Chinese poaching in the EEZs of its ASEAN neighbors can hardly be considered subsistence fishing. Instead,  it often involves what experts call China’s “Second Surging Sea Force” network of large fishing fleets working in tandem with Chinese navy and Coastguard vessels.

A loud chorus from the ASEAN trio

Jakarta’s rebuff of Beijing forms part of an increasingly loud chorus of opposition to China’s expansionist moves in the South China Sea, as it joins formal moves by two other major economies –  Malaysia and Vietnam – to set aside the Chinese Nine Dash Line-claim in favor of accepted international rules.

In November last year, a top Vietnamese diplomat announced that his country is now seriously considering to follow Manila’s earlier lead to bring China to arbitral court over  repeated Chinese intrusions in Vietnam’s Vanguard Bank, an oil-rich section of its EEZ.

Malaysia followed this up in late December by filing with the United Nations a claim for an Extended Continental Shelf (ECS). It made the filing under Article 76 of the  UNCLOS, which allows a coastal state to claim the outer limits of its continental shelf beyond the 200-mile limit, for an additional 150 miles, under certain geological conditions. It is a legal move that also eats  substantially into the Chinese Nine Dash Lines.

On January 3, or two days after the Indonesian MFA’s declarations,  Malaysia’s own Ministry of Foreign Affairs issued a statement saying it does not fear Chinese reprisals over its ECS filing.

The three countries’  combined message should unsettle China, as it confirms Beijing’s failure to marshal support among the region’s biggest economic and political players – not counting the Philippines –  for its rejection of the PCA’s ruling striking its Nine Dash Line-claim.

Beijing, in utter disregard of the ruling, then embarked on a building spree – now largely completed – over maritime features declared by the PCA as part of the Philippines’ EEZ.

Indonesia, along with Vietnam, Malaysia, Japan, and Thailand, had each sent a diplomatic observer to the Permanent Court of Arbitration proceedings at the Hague where the Philippine arbitral case against China was heard.  With the exception of Thailand, all the countries have a running maritime dispute with China.

During the PCA hearings in the Philippine case, Vietnam had as well filed a brief supporting Manila’s case against China.

Ironically, with the election to office of President Rodrigo Duterte in June 2016, Manila has backpedaled on its stance towards China, opting to take a conciliatory route towards Beijing. Manila had filed the arbitral case under his predecessor, Benigno Aquino III’s administration.

Three years into his term, Mr. Duterte, in addition to his contradictory statements over the country’s arbitral case victory, has so far continued his policy of rapprochement towards China, despite it not sitting well with most of the  Filipino populace, not to mention, with his own military advisers.

ASEAN chairmanship change

New Year’s Day also triggered a change in leadership of the ASEAN under the regional grouping’s charter, with its chairmanship automatically vested for a one-year term with Vietnam, from Thailand’s in 2019.

Article 31 of the ASEAN Charter provides that “the Chairmanship of ASEAN shall rotate annually, based on the alphabetical order of the English names of Member States.”

Vietnamese  chairmanship of the regional grouping may also prove pivotal to current ASEAN efforts at crafting a binding Code of Conduct regulating the actions of rival claimants in the region.

This – and the ASEAN trio’s open defiance of China on the South China Sea question – may yet push Mr. Duterte to rethink his own options towards Chinese occupation of maritime features that, according to  the PCA, are part of the Philippines’ own EEZ.

 

This piece appeared in the Philippine Star’s online edition on  January 5, 2020.

 

 

 

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Filed under Bajo De Masinloc, China, International Law, ITLOS, Malaysia, Nine-Dash Line Claim, PCA, Scarborough Shoal, South China Sea, Uncategorized, UNCLOS

Itu Aba: An Inside Track

itu_aba_ge1I guess it’s inevitable that the issue of Itu Aba would surface yet again in the wake of the Philippines’ resounding victory in the South China Sea Arbitration. As I noted in that earlier post detailing what we won before the Arbitral Court, the island — occupied by Taiwan — was a sore point between Justice  Francis Jardeleza (and his successor at the Office of the Solicitor General, Prof. Florin Hilbay), and Justice Antonio Carpio. The latter (with Chief Justice Sereno)  even went as far as opposing the former’s appointment to the Supreme Court because of  Jardeleza’s stance when he was Solicitor General. For background, click here and here.

A few days ago, Rappler came out with a piece recalling the Jardeleza-Hilbay tack on their alleged Itu Aba “miscalculation.”

Hilbay, now back at his old professor’s perch at the UP College of Law (funny, Jardeleza, Carpio and Sereno all served as professors at the College at some point in their legal careers), wrote a retort to Rappler’s rap. Rappler duly reported on his retort here.

This morning, I received a text from Prof. Hilbay expressing his reservations about the treatment his written statement had received in the Rappler news item. I  obtained a copy of his statement and am posting it below, for your own benefit and appreciation:

(A PDF file of the statement and the Memorandum mentioned in it may be downloaded here).

 

21 July 2016 UP College of Law

Response to Ms. Hofileña and Ms. Vitug
By: Prof. Florin T. Hilbay, former Solicitor General (Philippines v. China)

I respond to Ms. Hofileña’s and Ms. Vitug’s Rappler piece accusing me (and Justice Francis Jardeleza) of “miscalculation.”

First. I do not suppose the writers consider themselves experts in the law of the sea, much less official participants with personal knowledge of the West Philippine Sea litigation. I am therefore amused at the accusatorial tone they have taken on previously undisclosed legal strategy which, in fact, resulted in an overwhelming victory. Whether they are adopting the opinion of any person officially or unofficially connected with the case is also not stated. I am therefore left to respond to conclusions based on gossip, even as they were written by people I consider respectable journalists.

Second. In the coming months and years, the nation will have an opportunity to look under the hood of this magnificent legal accomplishment. Thankfully, given the positive legal result, the challenge will be about proper documentation and accurate narration of how this result came about, not about who should be blamed for what. The room is big enough and the pages of history books (or even Facebook) sufficiently spacious to toast the contributions of women and men privileged enough to have had a direct or indirect connection with the case. The bucket can accommodate decent human beings, and there’s no need to reduce oneself into a crab.

Third. Given the magnitude of this case and the multi-layered controversies surrounding it, I consciously adopted a policy of keeping documents and having multiple witnesses. This should eliminate erroneous factual claims and reduce subjective elements in the narration of the history of this case, which I intend to write. I saw myself simultaneously as a participant and an observer. As the former, my goals were to achieve an efficient win, reduce the impact of potential losses, and protect the President. As the latter, I was an excited case biographer.

Fourth. I saw the Itu Aba issue as belonging to the baskets where there was a need to reduce the impact of a potential loss and protect the President. By now, people should be aware that the Itu Aba issue is one where the entire team’s level of confidence was not at its highest. This explains why that feature was not included in our “complaint” in the first place. My discomfort with the treatment of Itu Aba figured prominently in a 2014 Memorandum I sent to Executive Secretary Paquito Ochoa, Jr. and Chief Presidential Legal Counsel (now Justice) Alfredo Benjamin Caguioa. This should be remarkably self- explanatory, and an interesting read.

I invite Ms. Hofileña and Ms. Vitug to reveal any other 2014 “official communication” from me to Malacanan.

Fifth. Ms. Hofileña and Ms. Vitug have a wildly mixed-up sequencing of events, which is to be expected from those who do not have official documents or had no direct and personal knowledge of events. Let me take the cudgels for them on one critical decision- point.

In the hearing on the merits last November 2015, the Tribunal made the Philippines grapple with a hypothetical: what happens if a feature (Itu Aba) were declared an island under UNCLOS (which therefore generates an Exclusive Economic Zone of 200 nautical miles from its coastline)? The original, proposed answer was that the Tribunal would retain jurisdiction to control, by some means, the conduct of the parties “pending agreement on delimitation or joint development arrangements.” I thought this was both novel and strange. This was the first time this theory was broached, and the proposal to softly offer “joint development arrangements” if we lose on the Itu Aba issue was problematic.

Witnesses to the agent’s discussion with foreign counsel, assuming they’re not deliberately forgetful, will remember two important points I repeatedly emphasized—

1) Commit to the wave. I did a short lecture on how surfers are able to catch big waves. Itu Aba is a wave we absolutely needed to catch, and we should not signal to the Tribunal that we think we might lose. We needed to focus our firepower on winning that issue instead of sheepishly offering “joint development arrangements” for when we lose. We should not, therefore, telegraph our punches.

2) Avoid impression of selling out. The Philippines, in this litigation, should not be seen as offering “joint development arrangements” as a second option or a compromise. For myself, I was particularly worried about being seen as inserting a very specific economic incentive as trade-off for losing the Itu Aba question. I told everyone “I will not be the Solicitor General who sold this case to China.”

Those who were in that meeting were former Secretary of Foreign Affairs Albert Del Rosario, Justice Francis Jardeleza, Justice Antonio Carpio, Ambassador Jaime Ledda, Deputy Executive Secretary Menardo Guevarra, and the entire contingent of Foley & Hoag.

In the aftermath of that meeting, foreign counsel strengthened (even more) the arguments on Itu Aba, dropped “joint development,” and recast the Philippines’ post-loss scenario to not make it appear we were not confident about winning Itu Aba.

At the conclusion of the hearings, Paul Reichler and Bernard Oxman (who delivered the wonderfully powerful speech for that hypothetical) thanked and congratulated me for my intervention. On my flight back home to Manila, I emailed Prof. Oxman: “I am serious when I tell you that your speech on the third day will probably be remembered as one of the most important speeches on the South China Sea disputes, and I’ll surely remind everyone of that fact.”

I think we won the Itu Aba issue because everyone from the Philippine side and the foreign counsel’s side was professional enough to realize that our occasional disagreements in this case could lead, rather thankfully, to compromises over our strongly held opinions. Fortunately, the brew was sufficient to convince the Tribunal that our arguments on the various submissions were correct.

Moving forward, I think the wise attitude here is to celebrate the victory, not malign anybody’s contribution. Justice Jardeleza, always fond of quoting JFK, would usually remind me that victory has a thousand fathers, but defeat is an orphan.

I couldn’t care less if this victory had a million parents.

-30-

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Filed under International Law, ITLOS, Nine-Dash Line Claim, PCA, Philippines, South China Sea, Uncategorized, UNCLOS