Aquino and the arbitration against China

One of the enduring legacies of President Benigno Aquino III is the Philippines’ landmark victory against China in the South China Sea Arbitration. It took courage and wisdom to sue China, an economic giant and a nuclear-armed superpower. President Aquino made the difficult decision even as his closest advisers were bitterly divided, with one faction against the arbitration and the other in favor of the arbitration.

These two factions fought from the beginning to the end. After consulting with Law of the Sea expert Paul Reichler and his team, then Foreign Secretary Albert del Rosario submitted to Malacañang his Memorandum to President Aquino recommending favorably the filing of the arbitration case against China. Unfortunately, his Memorandum was rewritten in Malacañang, making it appear that he was against the filing of the arbitration case. Secretary del Rosario swiftly found a way to give to President Aquino his original recommendation. President Aquino then convened a meeting of national leaders who, except for one, all voted to file the arbitration case.

When Paul Reichler recommended the amendment of our Statement of Claim to include the status of Itu Aba as one of the issues to be resolved by the arbitral tribunal, the two factions fought again. Secretary del Rosario arranged for Paul Reichler and his team to meet President Aquino in Malacañang so our lawyers could explain to the President the need to amend our Statement of Claim. Paul Reichler and his team waited for four hours in Malacañang for President Aquino, only to be told by then Executive Secretary Paquito Ochoa Jr. that the President could not meet them. Instead, Ochoa informed them that the instruction of the President was not to amend our Statement of Claim. Over dinner that evening, I asked Paul Reicher what he would do, and he replied he would discuss the status of Itu Aba in the Memorial without including it as an issue to be resolved by the tribunal.

When Paul Reichler submitted his draft Memorial to the Office of the President for approval, the two factions fought again. One faction wanted the 15 paragraphs in the Memorial explaining the status of Itu Aba to be deleted, while Secretary del Rosario insisted on the retention of the 15 paragraphs. I met with then Justice Secretary Leila de Lima and explained to her why the 15 paragraphs should be retained. I gave her a two-page brief on the matter to give to President Aquino, which she did. When President Aquino called the two factions to a meeting, he announced his decision — the 15 paragraphs would remain in the Memorial.

Incidentally, when journalist Marites Vitug interviewed President Aquino in 2017 for her book “Rock Solid,” she asked the President why he did not meet with Paul Reichler and his team. The President replied, in the presence of Secretary del Rosario, that nobody told him that Paul Reichler and his team were in Malacañang to see him.

Finally, for the last hearing at The Hague in November 2015, Secretary del Rosario as usual submitted to Malacañang the list of names of officials who would form the Philippine delegation. The list included my name as observer, but when the approval came out my name was deleted. Secretary del Rosario wrote back that if I would not be included he would not be joining the delegation. Malacañang reinstated my name.

When I arrived at The Hague, I found Paul Reichler and his team terribly upset. Solicitor General Florin Hilbay had earlier emailed them not to answer the questions of the arbitral tribunal on Itu Aba, questions that were previously emailed by the tribunal to our lawyers. At the meeting with our lawyers the evening before the first day of the hearing, I explained that in the Supreme Court, if lawyers refused to answer questions of the Court during oral arguments, that would be taken very strongly against them and they would likely lose their cases. Thankfully, Solgen Hilbay did not argue with me anymore and Paul Reichler and his team took that as a green light to answer all the questions of the tribunal.

The nation is eternally grateful to President Aquino for bravely filing the arbitration case and for steadfastly pursuing the straight and principled path until final victory.

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