File new arbitration case vs China

President Marcos should tell the Filipino nation how much our West Philippine Arbitration costs, then, he should cause the filing of a new follow-up arbitration case against China. This will make China accountable for the unconscionable and irremediable damage it inflicted on the environment when it embarked on the large-scale reclamation of parts of the West Philippine Sea (WPS), including areas indisputably within the Philippines’ exclusive economic zone (EEZ).The direct costs of the arbitration initiated by the late president Benigno Aquino III are composed of two parts: those of principal foreign counsel, and those of British counsels and expert witnesses.

The hiring of Foley Hoag LLP, our lead counsel, fell on us at the Office of the Solicitor General (OSG). We insisted that the fees of counsel be capped, that is, though measured based on time, it was subjected to a maximum amount. But, considering that the arbitral tribunal decided to bifurcate the proceedings, that is, divide it into the jurisdictional and merits phases, we agreed to have a reasonable upward adjustment of their fee.

The costs of British counsel, on the other hand, who were part of the international team of Paul Reichler and of our sundry experts were negotiated and managed by the Department of Foreign Affairs.

Both direct costs are now known to Executive Secretary Lucas P. Bersamin. The indirect costs, e.g., the cost of travel of lawyers, diplomats, and staff who attended the hearings at The Hague, are with their respective offices. The direct costs, however, account for the principal portion of the total cost of the arbitration. They also represent the cost to the Filipino people of our winning the arbitral award.

It is important for Mr. Marcos to disclose to Filipinos the cost of the arbitration, in the interest of full transparency, and because scarce Filipino resources funded the effort. More important, however, is what do we do with the award?

Before we filed for arbitration, we sought advice from a battery of foreign experts. Professor W. Michael Reisman of Yale Law School famously advised us: The chances of obtaining jurisdiction against China is 50-50, but if you surmount the jurisdictional hurdle, the chances of winning on the merits go up to 80 percent. Aquino took on the challenge, but result was that we were very conservative in our suit—we only sought a declaration of our rights in the WPS. We did not ask for damages.

And Aquino’s huge wager paid off. Big time.

We got a unanimous arbitral award and won almost all the points we wanted to be clarified.

The arbitral award shredded to pieces China’s hallucinations about its infamous nine-dash line. It clarified the reach of our territorial waters’ EEZ. It declared that none of the South China Sea features qualifies as an island.

A major bonus was its declaration of China’s responsibility and accountability for its large-scale degradation of the environment and marine resources. It held China directly responsible, as a state, and a party to the United Nations Convention on the Law of the Seas, for the damage to the environment. It found that China engaged in unlawful, artificial island-building in, among others, the Mischief Reef, which is indisputably within our EEZ.

On Oct. 26, 2023, Justice Secretary Jesus Crispin Remulla said the Philippine government is seeking to file an environmental case against China, saying “Mabilis naman trabahuhin ito. Sana by January or February, at the latest March, mai-launch namin ‘yung kaso. Hindi namin titigilan, tatantanan ito.”

To save on resources, we propose that the OSG be mandated to handle the new arbitration. The OSG has lawyers who know their international law and have experience from the previous arbitration. We have to prepare our evidence carefully and commence trial preparations soonest. This will entail some costs. Time is also of the essence. Experience has taught us that it takes about three years to produce a verdict, from the time a decision to arbitrate is made.

Mr. Marcos should authorize the filing of this new environmental arbitration against China.

Francis H. Jardeleza is a retired Supreme Court justice, served as solicitor general during the Aquino III administration and was an agent for the Philippines in the landmark South China Sea arbitration against China.