Finally, Retired Supreme Court Justice Antonio Carpio issued what is evidently a rejoinder to former Solicitor General Florin Hilbay’s statement on the arbitration between the Philippines and China over their South China Sea dispute last Saturday. Recall that Hilbay, who answered only to then President Noynoy Aquino, released that statement with the aim to point out “falsehoods and inaccuracies in [Carpio’s] story, and tell the nation a few facts about this interesting case”. Hilbay set a powerful context for his statement in these opening paragraphs…
During my time as Solicitor General of the Republic, I served as “agent” in the arbitration between the Philippines and China. An agent is the sole and formal representative of the State, with full authority to speak for and bind the nation. I was appointed by authority of President Noynoy Aquino. I’m pointing this out from the get-go not to brag about my role but to establish my “skin in the game” — I was the legally accountable officer and my actions as agent were the official acts of government. What is narrated here takes from this background.
On the other hand, Justice Carpio’s formal designation was, as he correctly pointed out, that of an “observer”- he had no direct and formal relationship with Pres. Aquino; was not officially part of the legal team that handled the case; and did not have any authority to speak for or bind the Republic during the arbitration. While his expertise on the matter is a given, as an observer, he had no skin in the game. And yet, he has somehow positioned himself as the voice on the West Philippine Sea (WPS) case, with authority to make accusations and insinuations ex cathedra.
Today in his Inquirer piece “The importance of Itu Aba”, Carpio argues that all would have been be lost had the issue of Itu Aba and the exclusive economic zone (EEZ) it is entitled to not been included in the tribunal ruling. Carpio claims that this would have sunk the whole case of the Philippines before the arbitral panel on the basis of China waiving issues over the EEZ under United Nations Convention on the Law of the Sea (UNCLOS). Under the arbitral ruling, both Itu Aba and Kalayaan were declared to be “rocks” which don’t generate an EEZ.
Informing the tribunal not to rule on Itu Aba [which Hilbay had been planning lead counsel Paul Reichler to do] 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).
Carpio avoids directly addressing other issues raised by Hilbay except for joint-exploration — a complete fabrication on Hilbay’s part if the government lawyers are to be believed. According to Carpio, Hilbay accused Reichler of “proposing on the sly ‘joint development’ with China”. In response, Reichler pointed out that Hilbay gave “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).” Carpio goes on to quote off Reichler’s response; thus…
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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.
The fact that Carpio offers a rejoinder in his column — while former Foreign Affairs Secretary Ramon del Rosario still remains conspicuously silent on the matter — only serves to reinforce Hilbay’s claim. Think of how Russia seized Crimea and maintains control over it up to the present. But the dispositive portion of the award over Reed/Recto Bank states, “The arbitral award concluded that Reed Bank, which is entirely underwater and sits within 200 nautical miles of the Philippines, is part of that country’s continental shelf.”
It may just be that the oligarchs behind Carpio and Del Rosario were hoping for a ruling before the end of the Aquino administration or they were complacent about a Roxas win in 2016. But with Rodrigo Duterte coming out of nowhere to join the Presidential race, their plans were screwed. And so began the anti-China campaign of the Yellows and the Reds against the administration. It’s now up to the public to judge who is really telling the truth and who has been acting to protect the interest of the Filipino people all this time.
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