Itu Aba: PH biggest worry is biggest win

MAPPING ITU ABA Google Earth shows Itu Aba (inside small circle), occupied by Taiwan, on the fringe of the Philippines’ 370-kilometer exclusive economic zone and flanked by other islands claimed by the Philippines, including the Kalayaan Island Group.

THE ROCK of contention was the Philippine legal team’s “biggest worry.”

But in the end, the status of Itu Aba, the largest feature in the disputed Spratly Islands in the South China Sea, turned out to be one of the Philippines’ most significant scores in its challenge to China’s claim to almost all of the South China Sea in the Permanent Court of Arbitration in The Hague.

For two solicitors general who led the team in the Philippines’ biggest international legal battle, the classification of Itu Aba as a rock, not an island, has been the greatest relief.

The UN-backed tribunal’s decision meant that the feature, long under the control of Taiwan, which calls it Taiping Island, does not entitle any claimant to a 370-kilometer exclusive economic zone (EEZ), precluding any overlap with the Philippines’ nearest coast in Palawan.

It is among the highlights of the unanimous ruling handed down by the tribunal on Tuesday, invalidating China’s sweeping claims in the South China Sea, nearly a full grant of the Philippines’ position on maritime entitlements in the heavily contested waters.

“Now I can tell you. At 5 p.m. on Tuesday, my worry was Itu Aba. Because we really didn’t know how the tribunal was going to rule,” said former Solicitor General Florin Hilbay, who argued the Philippines’ case before the tribunal.

“When the ruling was released, that was Ben’s (Supreme Court Associate Justice Alfredo Benjamin Caguioa) first question: “What’s the ruling on Itu Aba?”

‘Biggest worry’

“It was the biggest worry,” said Supreme Court Associate Justice Francis Jardeleza, also a former solicitor general.

Jardeleza was the government’s chief trial lawyer when it decided to initiate arbitration proceedings against China in January 2013.

Hilbay, who joined the Office of the Solicitor General in the same month but largely to handle the country’s defense for the reproductive health law, took on the role when Jardeleza was appointed to the Supreme Court in August 2014.

Had the tribunal ruled otherwise, Jardeleza said, it would have spelled further danger of encroachment by other claimants into Philippine waters.

Had the tribunal ruled that Itu Aba was an island, its EEZ “would reach the coast of Palawan and Reed Bank (Recto Bank),” a feature within the Philippines’ EEZ where the country had been exploring for oil and gas.

Whether Itu Aba should be included in the case was the subject of debate within the legal team and among outsiders who strongly supported  the Philippine claim—a matter that Jardeleza and Hilbay disclosed only after the case had been decided.

Differences in legal strategy at the time had even drawn for Jardeleza allegations of betrayal, particularly from Associate Justice Antonio Carpio, a staunch supporter of the Philippine case.

Risky for PH

“In the beginning, nobody said, ‘Include Itu Aba.’ Nobody. Not (Paul) Reichler (the Philippines’ lead lawyer), not the Department of Foreign Affairs (DFA). Nobody,” Jardeleza told the Inquirer in an interview on Thursday.

“Nobody wanted to mention Itu Aba because the risk was, if the tribunal ruled that it was an island, there would be an overlap of the EEZs,” he said.

The feature was not in the original complaint against China that the Philippines brought in January 2013.

In the following months, Jardeleza’s said scholars started taunting the Philippines in news reports for missing the largest feature in the Spratlys in its case.

Jardeleza said members of  the legal team were one in saying the Philippines should not amend the complaint to include Itu Aba, as that “would be admitting that you forgot about it.”

“The political reason is, if you were the one to include it and you lose politically, the next stage is that an aircraft carrier of China will park in Palawan and they can say, ‘Well, we have overlapping EEZs so we can go up to here.’ And that’s because of us,” Jardeleza said.

Written into ‘memorial’

Still, Reichler, of the international firm Foley Hoag who was commissioned for the case because of his experience in international arbitration, wrote 17 paragraphs about Itu Aba in the Philippines’ “memorial” in the case.

The memorial—a “long explanation of the complaint,” according to Hilbay—was in the works at the time.

Then President Benigno Aquino III eventually decided to include Itu Aba in the memorial, which was filed in March 2014, through mere mention, which made it “an incidental issue that might be relevant for deciding the major issues,” Hilbay said.

Later, it was the tribunal itself that asked the Philippines to submit further pleadings tackling Itu Aba—the strategy that Hilbay and Jardeleza said they had been eyeing all along.

“[The tribunal] knew Itu Aba was going to be crucial because it’s the largest feature. The tribunal itself was the one who compelled us to discuss Itu Aba, so it’s they signaling to us that we could not decide a lot of the issues you raised without looking at Itu Aba. But it’s the tribunal, not the [Philippines, that raised it as a feature whose status must be clarified],” Hilbay said.

It’s a rock

In the end, the Philippines won by asserting its position that Itu Aba was a rock, not an island. Taiwan, which occupies Itu Aba and has built an airport on it, rejected the ruling.

Apart from Itu Aba, Panatag (Scarborough) Shoal, Burgos (Gaven) Reef North, Chigua (McKennan) Reef, Mabini (Johnson South) Reef, Calderon (Cuarteron) Reef, and Kagitingan (Fiery Cross) Reef were also classified as rocks.

Zamora (Subi) Reef, Hughes Reef (no Philippine name), Panganiban (Mischief) Reef, Ayungin (Second Thomas) Shoal, and Gaven (Gavin) South Reef  were classified as low-tide elevations that do not generate any maritime entitlement.

Recto (Reed) Bank was  classified as a “completely submerged” feature within the Philippines’ EEZ.

Knock on Jardeleza

The inclusion of Itu Aba in the memorial was raised against Jardeleza when he was being considered for appointment to the Supreme Court.

Jardeleza was accused of betraying national interest when he pressed for the deletion of the Itu Aba information from the memorial.

Carpio raised the matter as a question on his integrity before the Judicial and Bar Council, the body that short-lists and endorses nominees for justices to Malacañang.

Chief Justice Maria Lourdes Sereno joined Carpio in opposing Jardeleza’s nomination.

“I kept quiet, even if I was being called a traitor. I did not respond. Why? Because if I had confirmed that we were fighting about Itu Aba, what do you think the Chinese intelligence would have done? It would have meant you were confirming that we were scared. So I kept my peace,” Jardeleza said, dealing with the controversy for the first time.

Hilbay described the disagreement between Carpio and Jardeleza as “a debate over strategy.”

“It was tactical,” he said.

Jardeleza said the hurtful allegations caused him sleepless nights but he held on to the discipline of keeping mum.

“My only complain is, just because we disagree, I’m seen as  less loyal to my country … especially if you (Carpio) have nothing to do with this case,” he said.

“Do not say the other guy is less patriotic than you are. We are all patriots,” he said. “[It] really hurts to be called a traitor by somebody who has nothing to do with the case.”

Jardeleza said he and Carpio maintained “civil” professional relations on the Supreme Court.