By Adolfo Quizon Paglinawan

 

Former magistrate Antonio Carpio did an awful kneejerk when he said former President Rodrigo Duterte acted beyond his authority and surrendered the country’s rights if he did indeed enter into a ‘gentleman’s agreement’ with China not to maintain BRP Sierra Madre, the derelict navy ship the Philippines grounded at Ayungin Shoal in 1999.

First, his statement was classic clickbait – sensationalizing to attract view on a piece of content. It often relies on “exaggerating claims or leaving out key information in order to encourage views”.  It was not a fact but an assumption, not news but a conjecture, not a declarative but in a conditional mood.

Second, even if granted for the sake of argument that Carpio’s loose accusation were true that “Duterte knew that without repairs the BRP Sierra Madre would soon collapse and thus end our presence in Ayungin Shoal.”

For Pete’s sake, it is Carpio who is advocating de-militarizing the area since August of last year. The former associate justice of the Supreme Court put a nail on this in a forum less than a month ago on March 6, 2024 in the Manila Hotel, saying, “Resupply mission to BRP Sierra Madre constitute military activity and thus outside the scope of UNCLOS and compulsory arbitration. So for the country to lodge complaints against harassment by China before the UN, the Philippines should now… shift to civilian activity so we can go back to the Arbitral Tribunal.”

READ: To invoke Unclos, Ayungin must host civilian facilities

https://businessmirror.com.ph/2024/03/07/to-invoke-unclos-ayungin-must-host-civilian-facilities/

Commonsensically, since it is the presence of the BRP that demilitarizes the area, to civilianize the situation, the Sierra Madre has to be pulled out of there, sold for scrap, or sunk deep enough elsewhere so it can serve as habitat for fish, barnacles, mussels and coral formation.

Third, Duterte’s agreement to a status quo is not without precedence.

On May 29, 2013, Defense Secretary Voltaire Gazmin and China Ambassador to Manila Ma Keqing discussed issues on Ayungin among other things on the sidelines of the commemoration of the International Day of United Nations Peacekeepers at Camp Aguinaldo.

Gazmin said the Chinese diplomat was “concerned [with the] Philippines coming up with structures, additional structures in the Ayungin Shoal and I told her that the ship that is moving towards Ayungin is only for provisions of food and water for soldiers who are there.”

The defense secretary he assured Ma that the Philippines would not build structures there, “We will not violate the agreement not to construct new structures. We told them we’re only bringing supplies for our troops there, like water, food. There will also be rotation of troops because we can’t put our men there permanently or they’ll go crazy.”

He even quoted Ma as saying that China is continuously monitoring Philippine troops there or whether new structures are being built.

Unlike Carpio, Gazmin who has spent at least three years doing diplomatic work as defense attaché in the Philippine Embassy in Washington DC, concluded his statements with some gem of nascent wisdom for our present government when he told media, “The threat is always there. It’s always there but we do follow some protocols like avoidance of dangerous maneuvers, avoidance of confrontational moves. So right now its holding, and we make sure that when go there also we have been doing regularly and routinely is the movement of logistics which are unarmed.”

Carpio who has been consistent in demonizing China and Duterte, even lied when he said, “the Arbitral Tribunal had already ruled in its July 12, 2016 ruling that Ayungin Shoal is part of the Philippines’ Exclusive Economic Zone (EEZ), with the Philippines having exclusive right to erect structures on Ayungin Shoal.” In Paragraph 1161, however, it said the matter was outside of its jurisdiction because in Paragraph 1162, it declared it to be a “quintessentially militarized area.” Despite the Arbitral Award ruling the shoal was part of our EEZ, its status on the ground prevents application of an EEZ as an EEZ cannot co-exist with a militarized area. To start with, our fishermen will end up fair game.

“That a ‘gentlemen’s agreement’ was a disguised surrender of our EEZ rights over Ayungin Shoal, as it gave China veto power over our exclusive right to erect structures on Ayungin Shoal,” is a terribly loaded assertion identical to jingoism.  How can any surrender and veto power occur when the area is not subject to our exclusivity or ownership for that matter.

The Philippines does not own Ayungin Shoal, we do not have sovereignty over it, it is not part of our territorial sea. Ayungin is 105 nautical miles from our Palawan baselines, our sovereign territorial sea ceased after 12 nautical miles.

Under UNCLOS, it is a low-tide elevation which by itself, cannot be subject to sovereignty claims.

Top nail it further, Ayungin Shoal does not qualify under the 1987 Constitution’s definition under Article I, to wit: “The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.”

If dogmatists like Carpio wishes to stretch this to the max, could it be part of our sovereignty because Presidential Decree 1596 included it in the polygon which President Ferdinand Marcos Sr. intended to be the Kalayaan Island Group? Negatory.  The 2016 Arbitral Award in Paragraph 574 ruled: “In any event, however, even the Philippines could not declare archipelagic baselines surrounding the Spratly Islands. Article 47 of the Convention limits the use of archipelagic baselines to circumstances where “within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.”599 The ratio of water to land in the Spratly Islands would greatly exceed 9:1 under any conceivable system of baselines.”

Thus, Carpio is incompetent to discuss these matters because his declarations are not consistent with what is on official record. It is not even consistent with his own public record.

Acting as ponente to the decision on GR No. 187167, where the Supreme Court declared as not unconstitutional our baselines law Republic Act 9522 passed in 2009, he wrote: “Under traditional international law typology, States acquire (or conversely, lose) territory through occupation, accretion, cession and prescription, not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treaty’s terms to delimit maritime zones… The last paragraph of the preamble of UNCLOS states that ‘matters not regulated by this Convention continue to be governed by the rules and principles of general international law’.”

This excerpt of the decision was intended to protect and preserve our historic rights to the territorial sea within the limits of three treaties (Treaty of Paris 1898, Treay of Washington 1900 and the Convention Treaty of 1930 between the US and Great Britain) that the United States passed on to us by virtue of our independence in 1946.  But when it comes to China’s historic rights in the South China Seas, Carpio’s duplicitousness manifests, and suddenly what is good for the geese (Philippines) is no longer good to the gander (China).

The overwhelming fact, nevertheless, remains that China has occupied the area, or in Duterte’s terms, has “possession” of Ayungin Shoal. To seal its sovereignty, it exercises “effective control” of the area minimalizing the presence of BRP Sierra Madre there.

I consider it obscene for Carpio to attack Duterte, as having no right to stop the Philippines from erecting any structure on Ayungin Shoal, much less any right to stop the Philippines from repairing the BRP Sierra Madre.

This is emotional manipulation otherwise known as gaslighting.

Secretary Gazmin’s idiom “they’ll go crazy” says it all. It needs no constitutional forensics. Just commonsense. If we do not agree to bar construction materials, then food and humanitarian resupply will not happen. Our troops there will not only grow hungry but will die.

So why does Carpio call out Duterte but not Gazmin who accepted the protocol, or for that matter Gazmin’s president, BS Aquino?

The insinuation that the gentleman’s agreement was a “secret deal” is another disinformation by mainstream media.

How can it be secret when it was published AS FAR BACK AS 2013 by

Philippine Daily Inquirer [https://globalnation.inquirer.net/75939/china-raises-concerns-over-phs-reported-development-plans-on-ayungin-shoal],

GMA News [https://www.gmanetwork.com/news/topstories/nation/310519/gazmin- china-concerned-phl-wants-to-build-more-structures-on-ayungin-shoal/story/],

Philippine Star [https://www.philstar.com/headlines/2013/05/30/947949/china-fears-phl-may-build-structures-ayungin-shoal] and was later picked up by the Associated Press and the South China Morning Post as far back as 2013, or three years before Duterte’s presidency?

Duterte’s spokesman Harry Roque said it was an agreement to respect status quo (with) no further improvements on both sides. It did not include removal of BRP Sierra Madre.

As we have proven, it is Carpio who insists on removing this rusting monument of discord that has created a momentum driving us to the fringes of war. His intentions are even suspect because they are linked with foreign vested interests he seems to be lawyering for, towards the private exploration of the oil and gas at Reed Bank. Who controls Ayungin controls Reed Bank because the former is the entry point to the latter.

Meanwhile, will the real Antonio Carpio, please rise?

   

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