Demonstrators, police, and media gather outside the Peace Palace in The Hague, Netherlands, on Tuesday, July 12, 2016, ahead of a ruling by the Permanent Court of Arbitration (PCA) on the dispute between China and the Philippines over the South China Sea. China has intensified the drumbeat of its opposition to an international tribunal’s ruling expected Tuesday that could threaten its expansive claims in the South China Sea. AP
For the men who toiled more than three years defending the country’s claims in the South China Sea, a reunion dinner seems the best way to celebrate a hard-won victory in what was arguably one of the biggest international legal case in recent history.
Former President Benigno Aquino III has promised to pick up the tab when he meets with former Solicitor General Florin Hilbay, Supreme Court Associate Justice Francis Jardeleza, and former chief presidential legal counsel and now Supreme Court Associate Justice Alfredo Benjamin Caguioa.
Minutes after the world learned that an international court had decided to junk China’s claim to almost all of the South China Sea, Hilbay recalled Caguioa asking what he would say to Aquino.
“I said, ‘Just say congratulations,’” said Hilbay, who stood as the country’s agent in the case heard by the Permanent Court of Arbitration in The Hague, the Netherlands.
When the former President got the message, he called up the government lawyers huddled inside Jardeleza’s chambers at the Supreme Court late afternoon of Tuesday.
Difficult decision
“And we ended up with a commitment to have dinner, for which the President will pay,” Hilbay said, adding: “We will schedule it as soon as possible.”
Jardeleza, however, made another request to the former Chief Executive: “I said, ‘Sir, can I urge you, can you write your memoirs soonest? Because we’d like to know how you arrived (at the decision to go for arbitration), which we heard in one of your exit interviews (with the media) was one of the most difficult decisions you had to make.’”
The Philippines initiated the arbitration case in January 2013, in the middle of Aquino’s six-year term, after all efforts for negotiations with China failed after it seized control of Panatag Shoal, a rock within the Philippines’ 370-kilometer exclusive economic zone (EEZ).
It was a huge gamble, “a case of first impression,” Jardeleza said.
Judgment call
In fact, the magistrate recalled how Aquino had asked about the country’s chances of winning the case, as the former Chief Executive was still making up his mind.
“[But] my training as a litigation lawyer is [that] we never give a percentage. I don’t think he was happy about it,” Jardeleza said.
“I said, ‘Sir, this is a judgment call. Jurisdiction is the first phase. It can go either way. It’s either the tribunal will hesitate and not go head-to-head against China, or they would see it as an opportunity to make a ruling,’” he said.
Having been “manager” of the legal team that initiated the arbitration case, Jardeleza had seen firsthand how the former President carefully weighed his decision to push ahead with a legal case that was sure to court the ire of giant China, as it did.
“President Aquino put his legacy at stake by going legal, by going through arbitration. Can you imagine if we lost? I could feel that he was really conflicted,” he added.
By then, Jardeleza had put together an interagency team to handle the case, including top lawyers from the Office of the Solicitor General and its mother agency, the Department of Justice, the Office of the President, the Department of Foreign Affairs and the Department of Energy.
The team was also supported by an international consultative group of law experts, including the late Associate Justice Florentino Feliciano, Yale Law School’s Michael Reisman and the University of Miami’s Bernard Oxman.
The Philippines then hired lawyers with expertise on international law, getting a team led by Paul Reichler of Foley Hoag, a firm with extensive experience in international arbitration between sovereign states.
Uncharted waters
“The jurisprudence wasn’t settled. These were unchartered waters. The lawyers were treading on new ground, so you really can’t compute and calibrate the risks,” Hilbay said, calling the Philippines’ arbitration bid “the biggest case of the century.”
There were times when they had to rein in differences in opinion on legal strategy within the Philippine team, Jardeleza said, adding that “voices were (occasionally) raised in spirited discussions” inside Malacañang.
For all that diligence, the two lawyers still considered the country’s overwhelming victory as staggering. “We were aghast that it’s a complete victory beyond our wildest expectations,” Jardeleza said.
The arbitral tribunal ruled that several disputed features in the South China Sea are actually rocks, not islands, and as such are not entitled to the 370-km EEZ.
The ruling also found that China had violated the Philippines’ sovereign rights to territories within its EEZ, and had damaged the environment through land reclamation and the destructive fishing methods of its fishermen.
“We came into this trying to promote the national interest, and the national interest is not simply winning the legal victory. It’s having effective control of your maritime entitlements on the ground, which we still don’t have. We are now at the stage of converting our legal rights into practical entitlements,” Hilbay said.
Game of diplomats
Moving forward, the two former Philippine agents in the case expressed confidence that the new administration would proceed with only national interest in mind.
“The game is not over yet. There are three games here: the game of the lawyers, the game of the diplomats, the game of the generals. The game of the lawyers is basically done … because the rights have already been clarified. We move on now to the game of the diplomats. The hope is that this will be basically a game of the diplomats, not a game of the generals,” Hilbay said, adding that much depends on the officials’ ability “to convert this legal advantage into a diplomatic success.”
Jardeleza, who was summoned along with Hilbay to Malacañang earlier this week for a briefing on the case with President Duterte, said they were at the administration’s beck and call should it need advice in planning the government’s next move.
“I sense in (the administration) that they apprehend the magnitude of the challenge. That’s a big plus. Understanding that this is not the end of the process, that this is only part of the process that has been terminated and clarified, that’s big,” Hilbay said. TVJ
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