Hilbay defends aborted strategy vs China
MANILA, Philippines – Former Solicitor General Florin Hilbay on Thursday, July 21, defended the legal strategy that he chose, but which was aborted, in the Philippines’ case against China over the West Philippine Sea (South China Sea).
Hilbay and his predecessor, now Supreme Court Associate Justice Francis Jardeleza, didn’t want to include a key issue in Manila’s pleading or memorial against Beijing.
This issue involves Itu Aba, an area in the West Philippine Sea which, if declared an island by an arbitral tribunal in The Hague, would have compromised the Philippine case.
Owing to technical issues, a declaration that Itu Aba is an island would mean that the tribunal lacks jurisdiction over the Philippine claim.
The tribunal on July 12 classified Itu Aba as a rock, not an island. It ruled in favor of the Philippines in general.
Rappler reported on Wednesday, July 20, that it "would have been a miscalculation, if not a tactical error, on the part of the Philippines" had Hilbay and Jardeleza gotten their way.
We sought his comment around noon Tuesday, July 19, about his initial position on the Itu Aba issue, but he did not reply. Hilbay instead chose to give his side by posting it online Thursday, July 21.
No to 'selling out'
In the statement that he posted on Squarespace on Thursday, Hilbay said: "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."
He also showed his "discomfort with the treatment of Itu Aba" in a memo sent in 2014 to then Executive Secretary Paquito Ochoa Jr and then Chief Presidential Legal Counsel Alfredo Benjamin Caguioa.
Hilbay recounted, as well, a "problematic" proposal in the Philippine case.
This proposal stemmed from a hypothetical question that the tribunal raised in a hearing on November 2015: What happens if a feature (Itu Aba) "were declared an island" under the United Nations Convention on the Law of the Sea?
Hilbay said, "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.'"
Hilbay also said he repeatedly emphasized two points:
- "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."
- "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.'"
"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," the former solicitor general said.
Hilbay said: "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."
Hilbay hits Rappler editors
At the same time, the former solicitor general criticized the writers of the story, Rappler editors Chay Hofileña and Marites Dañguilan Vitug.
Hilbay said: "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."
He added: "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."
Hilbay did not specify which parts of the story show a "wildly mixed-up sequencing of events."
Instead, he said, "Let me take the cudgels for them on one critical decision point."
Here he recounted the hearing in November 2015 where the tribunal asked a hypothetical question about Itu Aba being classified as an island under the UNCLOS. This hearing was not mentioned in Rappler’s story on Wednesday.
Hilbay ended his statement by saying: "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."
He said, "I couldn’t care less if this victory had a million parents." – Rappler.com