“The case is not a simple case. There are many claims that the Philippines has included in the case, anywhere from 13 to 15 — depending on how you count them — with sub-issues,” Batongbacal explained in an interview with CNN Philippines on Monday (July 6).
“Each one of those issues has a question of jurisdiction and of feasibility that the tribunal has to decide before it can proceed.”
Should the Arbitral Tribunal in the Permanent Court of Arbitration (also known as United Nations Convention on the Law of the Sea [UNCLOS] Tribunal) declare that it does have the power to hear and decide on the case, Batongbacal noted that this wouldn’t necessarily mean a victory for the Philippines.
Celebrating it would be premature because that only means other proceedings will have to follow, the lawyer added.
“So if they [UNCLOS tribunal or Arbitral Tribunal] decide that they have jurisdiction, we will have to wait again for another proceeding. This time, on the merits where the substantial issues will be pressed out. That’s the only the time that I as a lawyer will even consider celebrating,” Batongbacal said.
Related: Hague arguments: Philippine case against China explained
And what if the Philippines wins?
During the interview, Batongbacal also brought up the issue of enforcement and how this could pose a problem even if the Philippines wins this case.
According to the maritime expert, there is no independent enforcement body in charge of carrying out the judgement of international tribunals.
“Historically, the judgements of international tribunals have to be enforced through the compliance of the parties themselves. There’s no third party which will enforce the judgement for them,” Batongbacal said.
Batongbacal added if the Arbitral Tribunal rules that it couldn’t decide on the matter, this wouldn’t automatically mean that the country loses the West Philippine Sea.
“A dismissal on the basis of jurisdiction simply means that the case as presented could not be adjudicated by the tribunal. So it does not prevent any other case from being also filed subsequently.”
Batongbacal also noted that legal merits cannot be determined by a court if it lacks jurisdiction over a case.
This means that there will be no prejudgement on the Philippines’ and China’s respective claims.
“That doesn’t give China carte blanche to do what it wants as well in the West Philippine Sea. We still have rights and sovereignty over those areas,” Batongbacal said.
Alternative plans
Meanwhile, Batongbacal said that there are mainly three diplomatic issues that the government has to consider in drafting an alternative plan should the Hague hearings lead to less than desirable results:
How the country deals with China
How the country leverages the support of the international community for its position, which is in accordance with the rule of law
How the country leverages its alliances and agreements with other countries
