Ex-justice Jardeleza on West PH Sea: Environmental damage can be the focus if PH files another case vs. China

Former Supreme Court Associate Justice Francis H. Jardeleza said, in a forum on October 16, 2023, that environmental damage can be the focus if the Philippine government decides to file another case against the Chinese government concerning the West Philippine Sea (WPS).

The forum held at Silliman Hall focused on the topic, “Philippines vs. China: Dissecting the West Philippine Sea Controversy,” and included a screening of the documentary, “Beyond the Horizon: The Continuing Quest for Justice in the West Philippine Sea.”

Documentary

The documentary told the story of how the Philippine government filed in 2013 and won in 2016 the South China Sea Arbitration.

The Philippines won the case after the arbitral tribunal constituted under Annex VII of the United Nations (UN) Convention on the Law of the Sea (UNCLOS) voted unanimously in favor of the Philippines’ sovereign rights and jurisdiction in the WPS, claimed by China as part of the South China Sea.

However, the Philippines continues to face resistance from the Chinese government to acknowledge the ruling, grappling with China’s presence in the sea.

Jardeleza was the main interviewee in the documentary, as the former Solicitor General of the Philippines from 2012 to 2014 who served as the first agent for the Republic of the Philippines and head of the Philippine legal team handling the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China).

After the screening, Jardeleza answered questions from the audience about how the Philippine government can assert its rights over the WPS during the forum.

Environmental degradation 

Jardeleza said one legal option for the Philippine government to assert its sovereignty in the WPS is to file another case in the UNCLOS court focusing on the continued environmental degradation in the WPS caused by the Chinese government since the UNCLOS ruling in 2016.

The Philippines’ case included the environmental damage caused by the Chinese government’s land reclamation activities in the area, including its construction of artificial islands. 

However, Jardeleza said evidence on environmental damage was collected only up until around 2014.

“[When the Philippine government filed the case, the environment in the WPS] already started to degrade. [In around] 2013 [or] 2014, we stopped [collecting] our evidence. From 2014 up to today, the damage is still being done,” he said.

Jardeleza added that SU can use its network of scientists to help gather data on environmental damages in the WPS, and mentioned one of SU’s partner scientists in marine biology, Dr. Kent Carpenter from Old Dominion University, who was one of the expert witnesses in the tribunal who presented evidence on the environmental damage in the WPS.

“We should have our baseline figures done by Filipino experts because our Filipino scientists are the best. But to make our case stronger, we should have the baseline of the Filipino scientists plus we need our experts who are non-Filipinos,” he added.

Atty. Florin T. Hilbay, SU College of Law dean and the former Solicitor General who replaced Jardeleza as the Philippine agent in the South China Sea Arbitration in 2015, said during the forum that the moment he realized the Philippines had a chance of winning the case was when they were presenting the environmental damage caused by China.

“I could see the emotions of the judges looking at the destruction of coral [reefs]. I remember the term used by experts on the damage caused by China and the term was ‘catastrophic,’ meaning that the damage will last long enough beyond one, two generations. Given that the ecosystem is so interconnected, it’s very difficult to assess the extent of the damage but we do know that the damage was done,” Hilbay said.

Support from international community

Any legal move after the 2016 ruling, said Hilbay, is also a “political” move.

“If you’re looking for a case that you can file where you can get as much support as possible from the international community, then that would be a case filed by the Philippines against China, focusing on the environmental damage…Just based [on] my experience, and the facts of the ground, and the capacity for the Philippines to gather…support from the global community, especially from the scientific community, the ones who care about the environment, that’s a winning case right there,” said Hilbay.

Dr. MacArthur F. Corsino, SU School of Public Affairs and Governance (SPAG) faculty member and retired ambassador of the Philippines, said during the forum that aside from filing a case on environmental degradation, “soft power” measures like “going to the [UN] General Assembly and going for an ‘all-out campaign’ in public diplomacy worldwide, using all our embassies and consulates” can also be utilized.

“Soft power is containment, and containment means we don’t resort to arms…but if you combine several measures in order to contain the Chinese, that means we are not going to repress them physically but we will try to discourage them from mounting that kind of aggressive bullying against our coast guard and other vessels. To me, there is a way to combine these soft power measures that would place China in a position to rethink its strategy in the South China Sea. I’m talking about a combination of measures like the environmental degradation case, [UN] General Assembly…and public diplomacy,” said Corsino.

Corsino said public diplomacy is “targeted at the public opinion of other countries” including mass media and other opinion-making institutions, not on the state and government officials of other countries.

The forum and documentary screening was organized by the SU College of Law and SPAG.