By: David Brown

On July 12, the International Tribunal for the Law of the Sea upheld the Philippine government’s challenge to China’s sweeping claim that it had “since time immemorial” ruled the seas between Hainan and Singapore.

But almost overlooked in media reportage of the tribunal’s rulings were important clarifications of provisions of the United Nations Convention on the Law of the Sea, or UNCLOS,  on the protection of the marine environment. However the South China Sea showdown turns out, the tribunal’s rulings will bear importantly on future argument over the environment and ecosystem protection obligations of states everywhere.

Until a half century ago, the oceans were essentially regarded as bottomless dumping grounds. Growing awareness of the maritime domain’s environmental and ecological health concerns led to the Stockholm Conference on the Human Environment (1972) and, later, the environmental protection chapter (XII) of the Convention on the Law of the Sea. The pact established an agreed framework for the management of the maritime environment.

Since UNCLOS entered into force, however, there has been remarkably little adjudication of disputes bearing on states’ duties to protect the marine environment. Most cases brought to the International tribunal on the Law of the Sea have concerned the confiscation of boats caught fishing in disputed waters.

In 2013, however, the Philippines asked the tribunal to rule on a long list of complaints against China. In particular, Manila challenged Beijing’s assertion that Chinese “historic rights” trumped the Philippines’ far more recent declaration, according to LOS criteria, of an exclusive economic zone, or EEZ.

No matter that modern scholarship has raised grave doubts about the authenticity of those historic rights: from China’s perspective, it was totally justified in preventing Philippine Coast Guard vessels from policing Chinese fishing boats at Scarborough Shoal, approximately 100 nautical miles west of Luzon, the largest island of the Philippine archipelago.

The audacious Philippine brief further asserted that the Chinese authorities tolerated, encouraged, and failed to prevent environmentally destructive fishing practices by its nationals, violating China’s duty to protect and preserve the marine environment.

Manila also questioned China’s “harmful construction activities.” When it first took its case to the tribunal in 2013, a year after its fishermen and patrol boats were expelled from Scarborough Shoal, the construction activities the Philippine complaint referred to were modest structures on “features,” specifically Mischief Reef, well within the EEZ proclaimed by Manila in accordance with UNCLOS rules. A year later, however, Chinese dredges were converting seven reefs into artificial islands, features that expanded Beijing’s South China Sea “footprint” over 100 times. With the tribunal’s permission, these environmentally devastating island-building activities were added to the Philippine indictment of Chinese activity.

In virtually all respects, the LOS tribunal ratified the Philippine complaint, an extraordinary outcome.

The tribunal ruled that the entry into force of UNCLOS and its regime of territorial seas and exclusive economic zones superseded any nation’s claims to historic rights to maritime space. The tribunal affirmed that the environmental protection obligations set out in Part XII of UNCLOS apply to all states, both in maritime areas within those states’ jurisdiction and elsewhere. The tribunal noted also that China had repeatedly stated that its construction work at various features in the Spratly archipelago was for civilian purposes. “The tribunal will not deem activities to be military in nature when China itself has…consistently affirmed the opposite at the highest levels.”

Those findings cleared the way for the tribunal to address the environmental issues raised in the Philippine complaint. Specifically on these, the tribunal concluded that:

  • Chinese fishing vessels harvested threatened or endangered species at Scarborough Shoal and other locations;
  • Some Chinese fishing vessels used boat propellers to break through the coral substrate in order to harvest giant clams, which was actively tolerated by Chinese authorities in the months prior to conversion of all or part of seven reefs into artificial islands;
  • Sea turtles and giant clams listed in CITES Appendices I and II were often found on Chinese fishing vessels boarded by the Philippine Coast Guard within the Philippine EEZ;
  • The Chinese authorities were well aware of these persistent poaching activities by Chinese-flagged fishing vessels and, though obliged by the LOS Convention to adopt rules, measures and enforcement procedures to prevent such acts, “there is no evidence in the record that would indicate that China has taken any steps to enforce those rules and measures against fishermen engaged in poaching of endangered species” and “rather, it provided armed government vessels to protect the fishing boats.”

States have a positive duty to prevent or at least mitigate significant harm to the environment when pursuing large-scale construction activities. In its “island-building” project, China failed the test.

The marine environments where the harmful activities in the dispute took place were “rare or fragile ecosystems,” and the habitats of “depleted, threatened or endangered species.”

Since the end of 2013, China has created on top of coral reefs approximately 12.8 square kilometers of land from millions of tons of dredged coral, rocks and sand — catastrophic activities compared to which the prior construction activities of other states in the Spratlys are insignificant.

“The tribunal has no doubt that China’s artificial island-building activities on the seven reefs in the Spratly Islands have caused devastating and long-lasting damage to the marine environment.”

The tribunal noted that China claimed its construction activity had gone through a “science-based evaluation with equal importance given to construction and protection, taking full account of the issues of ecological preservation, and followed strict environmental protection standards.” It drily reported that Beijing had not provided copies of the environmental impact studies that it claimed to have done before the island-building commenced.

Beijing immediately and emphatically rejected the LOS tribunal’s dismissal of its notorious “U-shaped nine-dash line.” It has seemed less prepared to rebut the tribunal’s findings on the environmental issues.

David Brown is a former US diplomat and regular contributor to Asia Sentinel. This is reprinted with permission of the author and Mongabay, an environmental science and conservation news and information site.