Winning the battle of the sea

September 01, 2016

In 2013, the Philippines filed an arbitration case against China concerning maritime rights and entitlement of the South China Sea.  Three years later, on July 12, 2016, the Permanent Court of Arbitration tribunal handed down its ruling favoring the Philippines. Two individuals who played critical roles in this historic case were Hon. Francis Jardeleza, Associate Justice of the Supreme Court  and Hon. Florin Hilbay, former Solicitor General. Jardeleza, then serving as the country’s Solicitor General, filed the case at The Hague, Netherlands.  Hilbay took over Jardeleza’s position in 2014 when the latter was appointed as Associate Justice.

Jardaleza and Hilbay spoke to students at the Ateneo Law School (ALS) on August 26, 2016.  The two gave their personal insights on the country’s momentous win against China.

In his welcome remarks, Atty. Ignatius Michael Ingles, an ALS faculty member, told law students that the country’s victory was a “gentle reminder that hard work, taking risks, and diligence go a long way.”

Atty. Ignatius Michael Ingles delivers the welcome remarks.

Jardaleza began his talk by explaining the importance of the South China Sea. Spanning 3.5 million square kilometers, it is a semi-enclosed sea that is home to an abundant biodiverse coral reef ecosystem. A key shipping lane, South China Sea is also being looked at as a possible oil and gas resource. With its sizeable features, many countries claim ownership of the sea, Jardeleza said.

“The problem escalated in 2009 when China started making a claim through its so-called 9-dash line,” he said. The 9-dash line pertains to the demarcation line that appeared in a 1940s map showing China’s sovereignty. “It covers more than 60% of South China Sea. China was claiming its so-called indisputable sovereignty and sovereign rights over all the water and its resources.”

Justice Francis Jardeleza filed the arbitration case at The Hague, Netherlands.

There was already friction between the 2 countries, Jardeleza added. The tension intensified in 2012 with the Scarborough Shoal standoff — when a Philippine Navy surveillance plane found Chinese fishing vessels anchored off the Scarborough Shoal.  The shoal was one of the disputed territories in South China Sea. The incident resulted in protests rallies in the 2 countries.  By this time, the Philippine government was contemplating the use of legal measures. Jardaleza was brought in to start studying the practicality of bringing the matter to an international court.

“Given the facts, given the situation, there was a feasible way to assert our claim,” recalled Jardeleza. That feasible way was through the United Nations Convention on the Law of the Sea (UNCLOS). Also known as the Law of the Sea Treaty, UNCLOS is a rule of law governing the ocean.

“UNCLOS has a compulsory arbitration provision. If you join UNCLOS you must bind yourself to be bound by arbitration. Remember, it is a convention. It is a constitution — it is a law for the sea and only for sea,” he said.  UNCLOS, however, “measures entitlement to the ocean provided you have land. “

“You cannot have rights to the sea if you don’t have rights to the land. All measurements come from land. That is the paradox of UNCLOS.”

Applying facts to the case, the Philippines contested China’s claim.  China asserted that its 9-dash line was based on historic rights. UNCLOS does not recognize historic rights, Jardaleza said. “UNCLOS is based on measurements under land.”

The case was filed on January 23, 2013. In March 2015, Hilbay was appointed as Solicitor General, continuing the battle that Jardaleza had set in motion.

ALS students listen as Hon.Florin Hilbay explains the role of a Solicitor General.

“As soon I became the agent for the republic, my goals were simple: achieve an efficient win for the republic, reduce the impact of potential losses and protect the president,” said Hilbay. The country needed a win, he added. What was important though, was to define the kind of win: reasonable win or acceptable win. 

The role of the Solicitor General was akin to a team manager, Hilbay said. “Your job is to manage — to understand the complications of everything that they do and communicate and consequences. As team manager, you are responsible to the team owner, basically here the president, who in turn is responsible to your stockholders: the people.”

Hon.Florin Hilbay

While Hilbay and Jardeleza acknowledged the magnitude of the case and welcomed the international court ruling, the important thing to focus on now is the next steps of the 2 countries.

“The ball is now with our new president — how to negotiate with China. Whether we achieve it during our lifetime, during your time in Ateneo or when you become Solicitor General, we will never know but we are happy to have been part of the team,” Jardeleza said.
 

News Archive

  • Winning the battle of the sea
    Thursday, September 01, 2016

    In 2013, the Philippines filed an arbitration case against China concerning maritime rights and entitlement of the South China Sea.  Three years later, on July 12, 2016, the Permanent Court of Arbitration tribunal handed down its ruling favoring the Philippines. Two individuals who played critical roles in this historic case were Hon. Francis Jardeleza, Associate Justice of the Supreme Court  and Hon. Florin Hilbay, former Solicitor General. Jardeleza, then serving as the country’s Solicitor General, filed the case at The Hague, Netherlands.  Hilbay took over Jardeleza’s position in 2014 when the latter was appointed as Associate Justice.

    Jardaleza and Hilbay spoke to students at the Ateneo Law School (ALS) on August 26, 2016.  The two gave their personal insights on the country’s momentous win against China.

    In his welcome remarks, Atty. Ignatius Michael Ingles, an ALS faculty member, told law students that the country’s victory was a “gentle reminder that hard work, taking risks, and diligence go a long way.”

    Atty. Ignatius Michael Ingles delivers the welcome remarks.

    Jardaleza began his talk by explaining the importance of the South China Sea. Spanning 3.5 million square kilometers, it is a semi-enclosed sea that is home to an abundant biodiverse coral reef ecosystem. A key shipping lane, South China Sea is also being looked at as a possible oil and gas resource. With its sizeable features, many countries claim ownership of the sea, Jardeleza said.

    “The problem escalated in 2009 when China started making a claim through its so-called 9-dash line,” he said. The 9-dash line pertains to the demarcation line that appeared in a 1940s map showing China’s sovereignty. “It covers more than 60% of South China Sea. China was claiming its so-called indisputable sovereignty and sovereign rights over all the water and its resources.”

    Justice Francis Jardeleza filed the arbitration case at The Hague, Netherlands.

    There was already friction between the 2 countries, Jardeleza added. The tension intensified in 2012 with the Scarborough Shoal standoff — when a Philippine Navy surveillance plane found Chinese fishing vessels anchored off the Scarborough Shoal.  The shoal was one of the disputed territories in South China Sea. The incident resulted in protests rallies in the 2 countries.  By this time, the Philippine government was contemplating the use of legal measures. Jardaleza was brought in to start studying the practicality of bringing the matter to an international court.

    “Given the facts, given the situation, there was a feasible way to assert our claim,” recalled Jardeleza. That feasible way was through the United Nations Convention on the Law of the Sea (UNCLOS). Also known as the Law of the Sea Treaty, UNCLOS is a rule of law governing the ocean.

    “UNCLOS has a compulsory arbitration provision. If you join UNCLOS you must bind yourself to be bound by arbitration. Remember, it is a convention. It is a constitution — it is a law for the sea and only for sea,” he said.  UNCLOS, however, “measures entitlement to the ocean provided you have land. “

    “You cannot have rights to the sea if you don’t have rights to the land. All measurements come from land. That is the paradox of UNCLOS.”

    Applying facts to the case, the Philippines contested China’s claim.  China asserted that its 9-dash line was based on historic rights. UNCLOS does not recognize historic rights, Jardaleza said. “UNCLOS is based on measurements under land.”

    The case was filed on January 23, 2013. In March 2015, Hilbay was appointed as Solicitor General, continuing the battle that Jardaleza had set in motion.

    ALS students listen as Hon.Florin Hilbay explains the role of a Solicitor General.

    “As soon I became the agent for the republic, my goals were simple: achieve an efficient win for the republic, reduce the impact of potential losses and protect the president,” said Hilbay. The country needed a win, he added. What was important though, was to define the kind of win: reasonable win or acceptable win. 

    The role of the Solicitor General was akin to a team manager, Hilbay said. “Your job is to manage — to understand the complications of everything that they do and communicate and consequences. As team manager, you are responsible to the team owner, basically here the president, who in turn is responsible to your stockholders: the people.”

    Hon.Florin Hilbay

    While Hilbay and Jardeleza acknowledged the magnitude of the case and welcomed the international court ruling, the important thing to focus on now is the next steps of the 2 countries.

    “The ball is now with our new president — how to negotiate with China. Whether we achieve it during our lifetime, during your time in Ateneo or when you become Solicitor General, we will never know but we are happy to have been part of the team,” Jardeleza said.