Retired Supreme Court Senior Associate Justice Antonio Carpio on Wednesday warned that the Department of Foreign Affairs’ (DFA) “provisional understanding” with China on resupply missions to the BRP Sierra Madre in Ayungin Shoal could weaken the Philippines’ sovereign rights under the 2016 Arbitral Award, as he criticized the proposal to expand the arrangement to cover the entire West Philippine Sea.

Speaking on DAILY TRIBUNE’s Straight Talk program, Carpio questioned the DFA’s reported willingness to extend the provisional understanding beyond Ayungin Shoal, including to Pag-asa Island.

Carpio said expanding the arrangement would require the Philippines to provide prior notice to China, conduct consultations and allow inspections of cargo during resupply missions to areas such as Pag-asa.

“Why do we restrict ourselves and then subordinate our rights to China? That’s why I call this dumb. Dumber than dumb because the disaster right now is only in Ayungin but we want to expand it to the entire West Philippine Sea,” Carpio said.

He said that unlike Ayungin Shoal, which involves a maritime dispute, Pag-asa Island involves a territorial dispute, making any expansion of the arrangement more problematic.

Carpio also argued that the provisional understanding contradicts the 2016 Arbitral Award, which declared Ayungin Shoal part of the Philippines’ exclusive economic zone (EEZ) where the country has exclusive sovereign rights under the United Nations Convention on the Law of the Sea (UNCLOS).

He said countries around the world can conduct activities in our EEZ without having to seek permission, give prior notice, or undergo inspection by another state.

“All the nations of the world can go to Ayungin Shoal without giving notice to China, without consulting with China beforehand, without showing what they’re carrying because that is the freedom of navigation that is guaranteed under international law,” Carpio said.

According to Carpio, the arrangement with China has effectively limited the Philippines’ exercise of its rights at Ayungin Shoal through provisions requiring prior notice, consultations and inspections of resupply vessels by that country.

“We have agreed to give up our sovereign rights. That’s the meaning of that from my point of view,” he said.

Carpio warned that China could later invoke the principle of acquiescence under international law and argue that the Philippines had accepted limitations to its sovereign rights despite the 2016 arbitral ruling.

He said China could use the arrangement as evidence that the Philippines had voluntarily waived the rights recognized by the Permanent Court of Arbitration.

Carpio also questioned why the Philippines entered into the “provisional understanding” eight years after the arbitral award had become final and legally binding.

According to him, provisional arrangements under UNCLOS are intended for periods before a final decision is made, not after an arbitral ruling has been issued.

Carpio urged the government to withdraw from the arrangement and continue resupply missions through alternative means.

“We have to cut and cut cleanly, get out of that agreement. We should disengage right away and resupply Ayungin Shoal through airdrops, drones and fast boats,” he said.

DFA airs side

The DFA on Tuesday defended the provisional understanding, saying it had enabled 15 incident-free rotation and resupply (RORE) missions since July 2024.

Foreign Affairs spokesperson for Maritime Affairs Rogelio Villanueva Jr. said the arrangement is a conflict-prevention mechanism and does not require the Philippines to seek China’s permission or allow the boarding and inspection of Philippine vessels.

The DFA maintained that the understanding does not diminish Philippine sovereignty or its sovereign rights in the West Philippine Sea, saying that it aims to prevent misunderstandings and miscalculations during RORE missions.

The provisional understanding drew renewed scrutiny after questions were raised over its inconsistency with the 2016 Arbitral Award, prompting calls for a Senate inquiry into the agreement.

Earlier, two Filipino sailors were injured during a confrontation between Filipino and Chinese personnel near the BRP Sierra Madre, with Beijing claiming that its actions were triggered by alleged construction activities that violated the spirit of the provisional understanding.