Former Supreme Court Associate Justice Antonio Carpio —Inquirer file photo
MANILA, Philippines — Former Supreme Court Associate Justice Antonio Carpio on Wednesday said China cannot prevent the Philippines from building structures at Ayungin (Second Thomas) Shoal, the site of a grounded vessel serving as a Filipino military outpost in the West Philippine Sea.
Carpio said the shoal is part of the country’s exclusive economic zone under the 2016 South China Sea arbitral ruling, which Manila secured to invalidate Beijing’s sweeping claims in the waterway. The former magistrate was a key legal architect in the Philippine case.
“The arbitral award declared Ayungin Shoal part of the exclusive economic zone (EEZ) of the Philippines. In the EEZ, there is freedom of navigation and overflight for all states,” Carpio told Inquirer.
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“As the adjacent coastal state, the Philippines has the exclusive sovereign right to erect artificial structures on Ayungin Shoal without seeking permission from any state,” he added.
Carpio was reacting to a statement made on Tuesday night by Chinese Ambassador Jing Quan, who said the violent July 20 confrontation between China Coast Guard (CCG) and Philippine Navy personnel at Ayungin was triggered by a violation of a “provisional agreement” reached by the two countries in 2024.
Jing said the CCG found members of the Philippine Navy “doing some construction work on the ship,” referring to the grounded BRP Sierra Madre, “so we sent boats to check.”
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“That’s against the spirit of the provisional agreement,” Jing said, speaking to reporters hours after meeting with President Marcos in Malacañang, where the diplomat was earlier summoned over the incident.
Under the agreement, Jing said, there should be “no new construction” at the shoal and the “status quo” should be maintained.
Jing said the 2024 agreement had been “implemented very well” until the incident on Monday, where he said the actions of the Philippine Navy “provoked” the CCG.
For Rore missions
The Department of Foreign Affairs (DFA) announced in July 2024 that the Philippines and China had reached an “understanding” on a temporary agreement governing rotation and resupply (Rore) missions to BRP Sierra Madre.
The DFA did not provide details on the agreement at the time.
Critics then assailed the deal as a dangerous precedent and tantamount to rewarding China’s coercive actions in the West Philippine Sea.
But the DFA later explained that it would neither compel Manila to seek Beijing’s permission nor concede any territorial claims. It also pointed out that the arrangement was not framed in relation to the United Nations Convention on the Law of the Sea (Unclos) but a “mechanism” to prevent conflicts.
Asked on Tuesday if the recent confrontation could prompt a review of the 2024 agreement, Jing said: “Who knows? If there’s always [this] kind of confrontation—challenging each other, provoking the other side—we’ll see what happens.”
Despite the incident, Jing said. China’s principle has always been to prioritize negotiations: “Let’s talk… sit down, calm down, find a way [to] address each other’s concerns.”
‘In a bind’
But he maintained that Beijing continues to oppose the proposed code of conduct (COC) in the South China Sea, which the Association of Southeast Asian Nations (Asean) hopes to finally adopt in the Asean Summit in November in a bid to de-escalate tensions in the South China Sea.
“I don’t think the COC really addresses those… disputes. It never addresses each other’s bilateral concerns,” Jing said.
In the Inquirer interview, Carpio went on to question the legality of the agreement invoked by Jing. He also noted that the DFA did not publicly release the text of the deal.
“If that agreement prevents the Philippines from sending vessels to Ayungin Shoal without prior notice and consultation with China, or bars the Philippines from erecting artificial structures there, then it would undermine the country’s freedom of navigation and sovereign rights under Unclos and the 2016 arbitral ruling,” he said.
The DFA, he said, is “now in a bind” because China had publicly disclosed that Manila supposedly agreed not to resupply the BRP Sierra Madre without prior notice and consultation and not to build on Ayungin Shoal.
“That is a clear derogation of Philippine sovereign rights which is beyond the power of the DFA secretary to do,” he said. /cb
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