MANILA, Philippines – Top-notch trial lawyer Estelito Mendoza questioned the effectiveness of the Philippines’ historic arbitration case against China, with Beijing’s avowed refusal to comply with an unfavorable ruling.
The former delegate to the Third UN Conference on the Law of the Sea said it is unclear how Manila will benefit from the case over the South China Sea dispute even if the arbitral tribunal at The Hague rules in its favor.
Mendoza made the statement after delivering a lecture at the University of the Philippines (UP) on negotiations for the 1982 UN Convention on the Law of the Sea (UNCLOS), the so-called constitution for the seas and the oceans.
The lawyer was part of the Philippine delegation that helped negotiate UNCLOS. The Philippines brought China to court under the treaty, of which both countries are parties.
“I do not understand actually what is the grievance we are trying to rectify. Is it because we cannot fish near Scarborough [Shoal]? After this, shall we be able to fish? Is it worth all of, I think, hundreds of millions we’ve spent for lawyers? That is the problem,” Mendoza said on Friday, November 27.
Manila argues that Beijing violated its rights under UNCLOS through aggressive acts like reclamation. It wants the tribunal to nullify the 9-dash line, which China uses to claim practically the entire sea. The Philippines hired a premier legal team, headed by renowned American lawyer Paul Reichler of the US-based law firm Foley Hoag.
The Philippine government has not disclosed the cost of arbitration, saying “One cannot put a price in the concerted effort of the Filipino people and government in defending our patrimony, territory, national interest and national honor.”
Mendoza though asked how the Aquino administration arrived at the decision to file the arbitration case in 2013. China’s compliance is a major obstacle as the tribunal lacks enforcement mechanisms.
“No question, we’ve gained international recognition but I do not believe in filing cases just to establish a precedent or to gain a reputation. I believe only in filing a case if it will bring relief to the interest of my client,” he added.
A justice minister under the Marcos regime, Mendoza is best known for defending high-profile, controversial clients like former presidents Ferdinand Marcos, Gloria Macapagal-Arroyo, and Joseph Estrada, and recently, Senate Minority Leader Juan Ponce Enrile.
Mendoza has half a century of experience in litigation. The octogenarian lawyer is also a former solicitor general and ex-Pampanga governor.
Yet during the lecture at the UP Institute for Maritime Affairs and Law of the Sea, Mendoza focused on his role in helping negotiate UNCLOS. His lecture was held on the same week the arbitral tribunal began hearing Philippine arguments on merits after it ruled in October that it has the power to decide the case.
The tribunal is conducting hearings from November 24 to 30, and is set to release a final ruling by mid-2016. China decided not to participate, and does not recognize the tribunal’s jurisdiction.
Vietnam, Malaysia, Brunei and Taiwan also have claims to the strategic waterway through which $5 trillion in trade passes annually. The South China Sea also holds rich fishing grounds, and is believed to have vast reserves of oil and gas.
The Philippines calls the parts it claims as the West Philippine Sea.
‘Best way to win is to settle’
Responding to questions about the arbitration case, Mendoza said the best means to resolve the maritime row is through “amicable settlement.”
“I have spent a lifetime in litigation, and I have become very pragmatic about things. I do not engage in any effort that will not result in what my client’s interest requires or demands. The best way is to settle. You cannot lose if you settle. That’s the only way to surely win a case,” Mendoza said.
The former law professor pointed out that China’s non-compliance, and the Philippines’ weak military capability undermine the gains from a ruling favorable to Manila.
“If China does not recognize it, what shall we do? We cannot go to war, certainly not. The US is not going to war for us,” he said in reference to the Philippines’ treaty ally.
Mendoza narrated that he first became part of the UNCLOS negotiations when ex-justice secretary Vicente Abad Santos, his former teacher and law dean, tapped him to join the team.
He recalled how he gathered archipelagic states – the Philippines, Indonesia, Fiji and Mauritius – in Manila to craft a common position in the negotiations.
From the talks, Mendoza learned that multilateral negotiations are “a matter of getting the support of the majority,” “making friends and not making enemies.”
“What the government doesn’t get is a country acts only based on its own interest. There is no other interest a country is expected to support except its own interest. If the Philippines says in the South China Sea that the US, Japan, Vietnam are with us, that is an illusion. They have their own respective interests. Their interest is different from ours,” Mendoza said.
‘Quite a spectacle’
While the Philippines grapples with China’s growing assertiveness in the sea row, back during the UNCLOS negotiations, Mendoza said Manila had “no problem” with Beijing.
Over 30 years later, the lawyer said the question of jurisdiction in the arbitration case partially remains. The tribunal deferred ruling on jurisdiction in 7 out of the Philippines’ 15 claims, as the issue was closely related to the merits.
“Jurisdiction over maritime areas is always dependent on sovereignty over land. Now China, I understand, has reserved from the jurisdiction of the tribunal any question of sovereignty over land so I don’t know yet how the tribunal can determine whether it has transgressed our sovereignty over certain areas without jurisdiction over the land,” Mendoza said.
The Philippines though argues that the case is not about sovereignty or who owns the features in the sea. Instead, Manila wants the tribunal to rule that the features occupied by China are merely rocks that do not generate their own maritime rights.
Mendoza also joked about the absence of China in the proceedings. He compared it to his time defending cases during martial law.
“I just feel uneasy as one who has been in litigation all my life. To me, it’s quite a spectacle seeing a very crowded courtroom only on one side, and totally absent on the other side. I’ve never had that situation during martial law!”
The former justice minister said even under martial rule, the opposition was brave enough to show up. He remembered a conversation with the late human rights lawyer and senator Joker Arroyo, his classmate in UP Law.
“Sometimes I would ask Joker: ‘Joker, bakit pa kayo sali nang sali dito, talo ka naman sigurado?’ Sabi niya, ‘Aba, may kahulugan ito. Mabuti nandito kami. Mabuti pa nga sa iyo nandito kami, may kahugulan ang laban mo!‘”
(“Joker, why do you keep joining the case, you already know you’re sure to lose?” He said, “Oh, this has meaning. It’s good we’re here. It’s good for you we are here because your fight becomes meaningful!) – Rappler.com
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