MANILA, Philippines – “This is worse than what happened in Scarborough Shoal.”

Supreme Court (SC) Senior Associate Justice Antonio Carpio on Saturday, August 19, slammed the presence of Chinese ships guarding Sandy Cay, a sandbar near Pag-asa Island (Thitu Island) in the West Philippine Sea (South China Sea).

In a statement, Carpio described this as an “invasion of Philippine territory.” 

He urged President Rodrigo Duterte and Foreign Secretary Alan Cayetano to “vigorously protest” this – even as Cayetano said it is no longer the strategy of the Department of Foreign Affairs (DFA) to file diplomatic protests against China. 

Carpio explained that Sandy Cay “is a Philippine land territory that is being seized (to put it mildly), or being invaded (to put it frankly), by China.” 

He said: “It is the constitutional duty of President Duterte, and DFA Secretary Cayetano, to defend and protect Philippine territory. Both have vowed to the Filipino people that they will not concede a single inch of Philippine territory to China.”

“The very least that they could do now is to vigorously protest this invasion of Philippine territory by China,” Carpio said.

“If both are courageous, they should send a Philippine navy ship to guard Sandy Cay, and if the Chinese navy ships attack the Philippine navy vessel, they should invoke the Philippine-US Mutual Defense Treaty,” the justice added. 

Magdalo Representative Gary Alejano earlier told Rappler that at least 5 Chinese ships were recently spotted near sandbars west of Pag-asa Island. 

The Asia Maritime Transparency Initiative (AMTI) of the Center for Strategic and International Studies (CSIS) later released photos supporting Alejano’s claim.

The photos show at least two Chinese ships that “appear to be actively fishing” near Pag-asa Island. The images also indicate at least 9 Chinese fishing ships and two naval/law enforcement vessels near the island on August 13.

Cayetano, however, downplayed Alejano’s report. “There are reasons for the presence of certain vessels, but the situation in the area is very stable,” Cayetano said. 

Carpio, on the other hand, pointed out, “By any yardstick, this is a seizure of Philippine territory.”

Read Carpio’s full statement below:

1.  Two Chinese frigates, one Chinese coast guard vessel and two Chinese maritime militia fishing boats are guarding Sandy Cay, which is about 2.5 NM (nautical miles) from Pagasa, well within the 12 NM territorial sea of Pag-asa. These Chinese ships are not exercising the right of innocent passage because this right requires continuous and expeditious passage without stopping or loitering.  The Chinese ships are also not exercising freedom of navigation because this freedom does not apply to the territorial sea but only to the EEZ and the high seas.

2.  Sandy Cay was extensively discussed in the final ruling of the arbitral tribunal dated 12 July 2016.  Sandy Cay is located between Pag-asa and Subi Reef, although much closer to Pag-asa.   Sandy Cay is a disappearing high-tide sandbar – it appears for a few months and then disappears, and then re-appears again either in the same place or in a nearby place. The disappearance is caused by storms which disperse the sand. The action of the waves reforms the sandbar after a few months and thus the sandbar re-appears again.  The arbitral tribunal did not deem it necessary to decide whether Sandy Cay is a high-tide or low-tide elevation because there are low-tide elevation rocks in the Pagasa Reef between Pag-asa and Subi Reef that could be used as baselines of Pag-asa even without Sandy Cay.  These rocks, as baselines, extend the territorial sea of Pag-asa to include Subi Reef which is a low-tide elevation forming part of the continental shelf of the Philippines. 

3.  Apparently, because of China’s dredging in Subi Reef, pulverized corals drifted and gathered at Sandy Cay and made Sandy Cay permanently above water at high-tide.  As a high-tide elevation, Sandy Cay is now land or territory capable of sovereign ownership with its own territorial sea and territorial airspace.  Sandy Cay now cuts off the extension of Pag-asa’s territorial sea to include Subi Reef.  If China acquires sovereignty over Sandy Cay, it can now claim Subi Reef as part of the territorial sea of Sandy Cay, legitimizing China’s claim over Subi Reef and removing Subi Reef from the continental shelf of the Philippines. The Chinese ships have prevented a Philippine BFAR (Bureau of Fisheries and Aquatic Resources) vessel from approaching Sandy Cay. China obviously wants to physically possess and control Sandy Cay. 

4. This means China is now virtually occupying a new geologic feature within the territorial sea of Pag-asa, a Philippine territory, in clear violation of China’s supposed vow not to occupy any more islands in the Spratlys. This is worse than what happened in Scarborough Shoal. Sandy Cay is a newly-created island and could not have been owned by China even under its discredited historic nine-dashed line claim. Sandy Cay emerged within the territorial sea of a Philippine territory. If Sandy Cay becomes Chinese territory, it will reduce by a third or more Pagasa’s territorial sea. It will also prevent the Philippines from extending the territorial sea of Pagasa to include Subi Reef. By any yardstick, this is seizure of Philippine territory. 

5.  In short, Sandy Cay is a Philippine land territory that is being seized (to put it mildly), or being invaded (to put it frankly), by China. It is the constitutional duty of President Duterte, and DFA Secretary Cayetano, to defend and protect Philippine territory.   Both have vowed to the Filipino people that they will not concede a single inch of Philippine territory to China. The very least that they could do now is to vigorously protest this invasion of Philippine territory by China. If both are courageous, they should send a Philippine navy ship to guard Sandy Cay, and if the Chinese navy ships attack the Philippine navy vessel, they should invoke the Philippine-US Mutual Defense Treaty.                    

– Rappler.com