Retired Supreme Court Senior Associate Justice Antonio Carpio has challenged the Marcos administration to explain why it entered into a provisional understanding with China on Ayungin Shoal that, he said, effectively surrendered Philippine sovereign rights.

Speaking on DAILY TRIBUNE’s Straight Talk on Wednesday, Carpio said the government has refused to make public the provisional understanding governing the rotation and resupply (RORE) missions to the grounded BRP Sierra Madre, leaving Filipinos unaware of its terms, the officials who signed it, and the reasons behind it.

Carpio called on Foreign Affairs Secretary Ma. Theresa Lazaro and her predecessor, Enrique Manalo, to disclose the agreement in full.

“They’re not showing us this agreement. They said it’s just a matter of a statement of principles. But they have to show us what the statement of principles are,” Carpio said.

The arrangement was reached in July 2024 after increasingly violent confrontations between Philippine and Chinese vessels during RORE missions to Ayungin Shoal.

While Manalo was then foreign affairs secretary, the negotiations were handled by Lazaro who was serving as undersecretary. The agreement was intended to prevent misunderstandings and clashes without either side giving up their legal or territorial position.

Diminished right

But Carpio argued that it had the opposite effect. “Because if you go to the ground level, in the sea, that is what’s happening. We cannot go there without prior notice, without prior consultation, without on-site verification. And that’s really diminishing our sovereign right,” he said.

Carpio said even Navy personnel had questioned why the Philippines appeared to be notifying China before resupply missions.

He asked what prompted Manalo and Lazaro to agree to the arrangement and maintained that, through the undertaking, the Philippines had surrendered part of its sovereignty.

Carpio argued that “under Philippine law, the accord would be unconstitutional because the Foreign Affairs Secretary has no right to give up our sovereign rights.”

“It’s beyond his [or her] pay grade. He has no authority to do that,” he said.

At the same time, he warned that under international law, agreements entered into by a foreign secretary may still bind the Philippines regardless of whether domestic law authorizes it.

Rights waived?

“There are two officials in the government who can bind the Philippines when it enters into foreign agreements: the president and the foreign secretary,” he said.

“That’s the rule in international law. Because they represent the country, whether they were authorized or not doesn’t matter because international law doesn’t look into domestic law,” Carpio explained.

He cautioned against expanding the provisional understanding to cover the entire West Philippine Sea, saying that such a move could eventually subject even Philippine activities on Pag-asa Island to Chinese monitoring and weaken the country’s position under the 2016 Arbitral Award.

China, he said, could later invoke the principle of acquiescence to argue that the Philippines had voluntarily waived rights already recognized by the arbitral tribunal.

Carpio urged the government to terminate the arrangement immediately.

Incident-free

“I’ve told them, cut and cut cleanly, get out of that agreement,” he said, warning that continuing the arrangement would amount to abandoning the country’s arbitral victory.

The DFA has defended the provisional understanding, saying it has enabled 15 incident-free RORE missions since July 2024 and it does not require the Philippines to seek China’s permission or allow inspections of Philippine vessels.

The department has maintained that the arrangement does not diminish Philippine sovereignty or sovereign rights in the West Philippine Sea.