Hilbay, Jardeleza opposed inclusion of Itu Aba in PH case

It would have been a miscalculation, if not a tactical error, on the part of the Philippines had then acting Solicitor General (SolGen) Florin Hilbay and his predecessor Francis Jardeleza gotten their way on the West Philippine Sea case.

Official communication of Hilbay to Malacañang sometime 2014 showed that the SolGen had clear misgivings about the inclusion of Itu Aba in the pleading or memorial filed by the Philippines with the arbitral tribunal in March 2014.

His main argument was: a decision by the arbitral tribunal recognizing Itu Aba as an island would be in China's favor because it would entitle Beijing to an exclusive economic zone (EEZ). The EEZ is an area 200 nautical miles from a coastal state’s baselines, within which the state has exclusive rights to fish and exploit other resources. 

If Itu Aba was declared an island, its EEZ would overlap with the Philippines' EEZ in Palawan, which covers the oil-rich Recto Bank (Reed Bank). This overlap could mean that the arbitral tribunal would have no jurisdiction over the Philippines' claim and boost China's position. (READ: What's at stake in our case vs China)

In Hilbay's view, it was better for Recto Bank to remain a disputed area, even with the presence of the Chinese Navy, as long as the Philippines' claim stands. Recto Bank or Reed Bank is known to be rich in oil and gas deposits and had been the subject of previous explorations.

In its ruling on July 12, however, the United Nations-backed arbitral tribunal classified Itu Aba as a rock rather than an island. In addition, the tribunal also classified Reed Bank as a feature within the Philippines’ EEZ.

The historic case had captured global attention, because as Paul Reichler’s law firm, Foley Hoag, said in a statement, “it involves critical issues relating to China’s expansive claims over some 90% of the South China Sea, an area of major strategic importance through which over 50% of the world’s commercial shipping passes each year.”

As a result of the ruling that also invalidated China’s claim of exclusive rights and jurisdiction within its so-called “9-dash line”, the Philippines and other coastal states in the area can now fish and explore for oil, gas, and other resources.

Elephant in the room

Hilbay and his predecessor, Francis Jardeleza, shared the same view while the Philippines’ legal team, led by Reichler, argued for the inclusion of Itu Aba in the memorial.

The original claim or complaint filed by the Philippines against China on January 22, 2013 was silent on Itu Aba, the largest feature in the disputed Spratlys. At this time, Jardeleza was SolGen, and would later be appointed to the Supreme Court in August 2014.

But Reichler wanted to amend the claim because excluding it would have been tantamount to ignoring the elephant in the room with regard to the Philippine position. He prepared more than a dozen paragraphs on Itu Aba and included it in the memorial that was to be filed later.

As previously reported, Jardeleza deleted the relevant paragraphs and reportedly argued this would appease China and help restore relations with the Asian superpower.

But in a recent interview with the Inquirer, Jardeleza said, “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 was also reported as saying, amending the complaint “would be admitting that you forgot about it.”

When he got wind of Jardeleza's deletion, Reichler sought a meeting with Aquino to discuss the memorial and warn him about the implications of taking out references to Itu Aba. Reichler and two other lawyers waited for more than 3 hours for that meeting which never materialized, according to a source privy to what happened.

It was then Justice Secretary Leila De Lima who relayed to Aquino the concerns about Itu Aba. She arranged a meeting with then Foreign Affairs Secretary Albert del Rosario and Jardeleza, who reportedly said the inclusion of Itu Aba would offend China and that there really was no need to include it since it would just delay arbitral proceedings.

It was De Lima who had the ear of former president Benigno Aquino III and it was she who persuaded him to approve the inclusion of Itu Aba in the 4,000-page memorial that was filed on March 30, 2014.

Aquino eventually sided with his justice secretary and gave his imprimatur on Itu Aba.

China's position

In December of 2014, China published its position paper in an apparent response to the memorial filed by the Philippines. In that paper, China said the tribunal has no jurisdiction over the case, even as it refused to file a counter-memorial.

Towards the last quarter of the following year, the tribunal asked the Philippines to respond to a question on Itu Aba. What was the Philippine response to claims “it is capable of human habitation?”

Hilbay did not want to answer the question. After he got appointed Solicitor General in June 2015, he reportedly said he would instruct Reichler to write the tribunal to say it should not rule on Itu Aba. Some members of the legal team were alarmed because it would have been tantamount to throwing away the case. It would have spelled sure loss for the Philippines.

Rappler tried to reach Hilbay for an explanation of his initial stance on Itu Aba. He has not replied to our request for comment as of posting.

Taiwanese moves

In January 2016, then Taiwanese President Ma Ying-jeou flew to Itu Aba, known in Taiwan as Taiping Island, and declared it was "an inherent part of the Republic of China". He cited supposed historical documentary evidence that attests to the presence of freshwater on Itu Aba to boost China's position that it was habitable, and therefore an island.

When Taiwan intervened at the last minute and made mention of Itu Aba before the arbitral tribunal, it asserted there was drinking water. Dogged research by the American lawyers for the Philippine legal team yielded documents that refuted the Taiwanese claim.

In the end, the Philippine team was able to introduce evidence based on earlier studies that said before 1912 (when the Republic of China or Taiwan was created), there was no drinking water on Itu Aba that would have made human habitation possible.

Referring to Taiwan's intervention, a member of the Philippine team said, “We exposed them. They submitted a dishonest pleading.” It was one of the reasons why the Philippines won. – with reports from Paterno Esmaquel II/Rappler.com

Chay F. Hofileña

Chay Hofileña is editor of Rappler's investigative and in-depth section, Newsbreak. Among Rappler’s senior founders and editors, she is also in charge of training. She obtained her graduate degree from Columbia University’s School of Journalism in New York.