The importance of Itu Aba

On Dec. 18, 2014, I met with then Solicitor General Florin Hilbay upon his request. Hilbay informed me that he would instruct Paul Reichler, the Philippines’ lead counsel in the arbitration case against China, to “formally inform the arbitral tribunal not to rule on Itu Aba.” My reply was simple and direct: “If you do that, I will fight you in public. I will go around the country and denounce you.” Apparently, Hilbay heeded my warning, for he did not issue the instruction to Reichler.

Informing the tribunal not to rule on Itu Aba would have been disastrous. Under the arbitration rules of the UN Convention on the Law of the Sea (Unclos), if a party fails to appear, “the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.” This means that the tribunal must ask the questions that the non-appearing party would have asked had it appeared. The most important question that China would have raised had it appeared is the status of Itu Aba—whether or not it is entitled to a 200-nautical-mile exclusive economic zone (EEZ).

If Itu Aba is entitled to an EEZ, its EEZ would overlap with the 200-nautical-mile EEZ of the Philippines off the coast of Palawan, because the distance between Itu Aba and Palawan is just over 200 nautical miles. In such event, the arbitral tribunal would have no jurisdiction over the arbitration case because in 2006 China voluntarily opted out of compulsory arbitration in case of overlapping EEZs, an opt-out expressly allowed under Unclos. Thus, the status of Itu Aba was critical to the success or failure of the cause of the Philippines.

The arbitral tribunal later affirmed the importance of Itu Aba when it declared in its Oct. 29, 2015 Award on Jurisdiction and Admissibility: “xxx the Tribunal considers it necessary to consider the maritime zones generated by any feature in the South China Sea claimed by China, whether or not such feature is presently occupied by China.” It was thus “necessary” for the tribunal to determine the maritime zones generated by Itu Aba, the largest island in the Spratlys, to decide the merits of the arbitration case. Informing the tribunal not to rule on Itu Aba would have forced the tribunal to dismiss outright the Philippines’ arbitration case.

A few days before the final hearing at The Hague in the last week of November 2015, Hilbay emailed Reichler and his team not to answer any question of the tribunal on the status of Itu Aba. This had exactly the same damaging effect as notifying the tribunal not to rule on the status of Itu Aba. To a man, Reichler and his team vehemently opposed Hilbay’s instruction, viewing it as throwing away the arbitration case. They were prepared to ignore Hilbay’s instruction, since the instruction was extremely detrimental to their client, the Republic of the Philippines. They knew that if they followed Hilbay’s instruction, the international legal community would view it as a sellout of the arbitration case by Reichler and his team. Thankfully, the night before the first day of the hearing, Hilbay backed off from his legally suicidal instruction.

However, Hilbay later accused Reichler and his team of proposing on the sly “joint development” with China. In reply, Reichler wrote: “He (Hilbay) gave us a completely counterproductive instruction to refuse to answer the Tribunal’s questions on Itu Aba (which the Tribunal had sent us in writing in advance of the hearings). We explained to him that it would be a grave error, and cost us not only that issue but our credibility in general, to refuse to answer questions put by the Tribunal. He stubbornly held to his position, against the strong advice of all lawyers: Foley Hoag, Oxman, Sands and Boyle. Fortunately, SFA Del Rosario and Justice Carpio took him aside and somehow got him to rescind his instruction. Had we followed that instruction, we would have certainly lost on Itu Aba, and possibly other issues as well. Further, his statement that the lawyers wanted to discuss joint development in our response to the Tribunal’s questions about Itu Aba is a complete fabrication.”

——————

[email protected]