International environmental law aspects of the South China Sea Arbitration Award
By Līza Leimane
On 12th of July 2016, an arbitral Tribunal under Annex VII of the UN Convention on the Law of the Sea (UNCLOS) handed down an Award in the case of the Republic of the Philippines v People’s Republic of China in the matter of the South China Sea Arbitration (PCA Case Nº 2013-19). Environmental aspects formed a considerable part of the 479 pages long Award, and they will be addressed in detail in this piece. The major considerations of environmental issues were included in submissions 11 and 12(b), as presented by the Philippines. These two environmental submissions were related to China’s conduct in two different scenarios: China’s tolerance of harmful fishing practices by its nationals, and the harmful construction of artificial islands and installations on reefs. Philippines sought declarations from the Tribunal that China had violated its obligations under UNCLOS, because it had failed to protect and preserve the marine environment. Some attention will also be paid to the announcement by China that it will not implement the Award.
When considering submissions 11 and 12(b), the arbitral Tribunal had to assess if China had fulfilled its obligations under the Convention. Articles 192 and 194 UNCLOS were the articles assessed in that regard. Article 192 refers to the protection and preservation of the marine environment, while Article 194 refers specifically to marine pollution. The Tribunal noted that the obligations of States under these two articles extend beyond activities taken directly by States, and encompass activities that are undertaken within areas under their jurisdiction and control. In the interpretation of the obligations, the Tribunal has recognized that they require ‘due diligence’. The interpretation of the obligations has also referenced back to the body of international environmental law. The arbitral Tribunal refers to the International Tribunal for the Law of the Sea (ITLOS) Fisheries Advisory Opinion, which requires states to investigate reports by other states on the non-compliance of their vessels with the Convention,[i] as well as to the remarks by the International Court of Justice (ICJ) on due diligence in the Pulp Mills on the River Uruguay case, requiring a “certain level of vigilance”.[ii]
Article 194(5) UNCLOS covers all measures taken under Part XII that are necessary to preserve and protect “rare and fragile ecosystems” as well as the habitats of endangered species. Based on the scientific evidence that had been presented to the Tribunal, there was no doubt that the marine environments under question were “rare and fragile ecosystems” and that they formed habitats for “depleted, threatened or endangered species”. In the interpretation of the Article, the Tribunal also drew on wider international environmental law. First it drew on the Convention on Biological Diversity (CBD), specifically Article 2 CBD, because UNCLOS does not provide a definition for the term ‘ecosystem’ and so the Tribunal looked beyond the Convention. The Tribunal also held the views that CITES (to which both Philippines and China are parties to) informs the content of the Article. CITES was considered by the Tribunal, because it concerned sea turtles that were found on board of Chinese fishing vessels - they that were listed under Appendix I of CITES as a species threatened with extinction. This allowed to hold the view that the marine environments in question were indeed habitats of “depleted, threatened, or endangered species”.
The arbitral Tribunal noted that due diligence required under Article 192 UNCLOS is not only for the adoption of rules on protection and preservation measures, but also for the enforcement of such rules and measures to ensure that the marine environment is protected and preserved. Based on the facts, the Tribunal was satisfied that China had both tolerated and provided protection to poaching that was undertaken by Chinese nations. The Tribunal also noted that the widespread harvesting of giant clams using the highly destructive propeller chopping method to break up coral and release the clams was leading to the destruction of the coral reefs. It stressed that Article 192 UNCLOS extends to the prevention of harms that would affect depleted, threatened, or endangered species indirectly through the destruction of their habitat. The Tribunal concluded that China had breached its obligation of due diligence, despite the fact that it had relevant protection and preservation rules and measures in place. With regards to the use of cyanide and explosives, the Tribunal stated that Philippines had not provided sufficient evidence, and so China could not be held responsible for a lack of due diligence in the prevention on using these techniques.
Environmental Impact Assessment
The Award also makes contribution to the international environmental law jurisprudence regarding Environmental Impact Assessment (EIA). China did not participate in the proceedings, but there were repeated claims by Chinese officials that the construction works carried out in the reefs had been subject to environmental evaluation. The court sought to pinpoint Chinese expert opinions by examining several documents that were produced by Chinese-funded scientific organisations. Furthermore, the Tribunal also invited China (and the independent experts as well as the Philippines) to identify and provide a copy of the EIA that was carried out for these construction works. Despite Chinese assertions that it had undertaken an environmental evaluation, no report was identified that resembled an EIA in content and met the requirements of Art. 206 UNCLOS or Chinese Environmental Impact Assessment Law. The Tribunal also cited the ICJ judgement in Nicaragua v Costa Rica on this issue, where it was stated that an assertion by a state that is has performed a preliminary assessment of environmental risk does not mean that such an assessment has actually been conducted.[iii]
Under Article 206 UNCLOS the requirement to carry out on EIA exists if the party has ground to believe that the proposed activities could pollute or harm the marine environment. The Tribunal noted that China did have reason to believe that its constructions ‘may cause significant and harmful changes to the marine environment’. Hence, China was obliged to carry out an EIA and communicate the results. The Tribunal also noted that the preparation and communication of an EIA is a direct obligation under UNCLOS. The Tribunal could not find proof that China carried out an EIA, but it could not definitively state that China had failed to do so either due to constant assertions about environmental assessment by Chinese officials. However, the Tribunal did find China in breach of its obligations under Article 206 because the EIA and its results were never communicated.
Use of independent expertise
One of the notable aspects of this Award, is the reference to reports of experts that were appointed by the Tribunal. This was done to assess the environmental impact of China’s construction activities on the various reefs. The independent experts were appointed to ensure that Philippines claims were well founded, given that China did not participate in the proceedings.
The Tribunal accepted the conclusions drawn by the independent experts, which stated that China’s construction activities had caused environmental harm. Since China reiterated numerous times that its construction activities had followed high environmental standards, the Tribunal asked both the independent experts and the experts appointed by the Philippines to locate any claims of Chinese scientists on the consequences of the construction activities. Furthermore, the Tribunal also invited China to comment on the alleged environmental impacts of its construction activities. In the end the Tribunal was satisfied that China’s construction activities on reefs had caused long-lasting environmental damage - China had violated Articles 192, 194(1) and 194(5) of UNCLOS.
Since the beginning of the proceedings, China has argued that the PCA does not have jurisdiction on the issues. The Court rejected China’s objections and since then, Beijing has refused to participate in the proceedings and stated various times that it will ignore the Award handed down by the Tribunal.[iv] Since the Award was issued, Beijing has held an even stronger stance on the issue, now claiming sovereignty over all land features in the South China Sea,[v] which could further aggravate the issue with neighbouring states.
While the Chinese stance of non-implementation has been criticised by many, including the United States, China’s position is not surprising especially given the actions of major powers in the past regarding PCA judgements. The country is following a precedent that has been set in the past by other big states. In fact, none of the Security Council permanent members have ever complied with a PCA judgement on the Law of the Sea. Hence, it is not surprising that China is following those same footsteps.
Potential implications of the decision
Paul S. Reichler, who was on the Philippines legal team, has stated that the Award is important because “this is really the first case to go to judgment over environmental provisions of the Law of the Sea”[vi]. While the case was not singularly on environmental issues, it could set a precedent - other governments could be held responsible for damaging the oceans under the Law of the Sea.
What also makes this Award interesting, is that often international tribunals and courts are not eager to utilise independent experts, especially in environmental cases. However, this Award could be seen as an example of how international tribunals can utilise independent experts to test the various claims of the parties while also remaining in control over the eventual conclusions on the facts and their legal characterisation.
While it was recognised by the Tribunal that the environmental damage done was significant, it also notes that the damage done cannot be undone and no remedies for environmental damage were provided under the Award. Furthermore, given the political situation with regards to the wider dispute it is unlikely that a willingness to engage in cooperation will emerge between the states. Hence, despite the developments in international environmental jurisprudence it is clear that the environment in the South China Sea lost out.
The Tribunal noted that there was a duty to not aggravate or extend a dispute that is before an international tribunal. More details on that can be found HERE.
[i] Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion, 2 April 2015, Advisory Opinion International Tribunal for the Law of the Sea 3, at 34 and 40.
[ii] Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, ICJ Reports (2010) 14, at 69.
[iii] Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015.
[iv]Graham Allison, Of Course China, Like All Great Powers, Will Ignore an International Legal Verdict, 11 July 2016, available online at: http://thediplomat.com/2016/07/of-course-china-like-all-great-powers-will-ignore-an-international-legal-verdict/
[v]Xie Yanmei, China Hardens Position on South China Sea, 16 July 2016, available online at: http://thediplomat.com/2016/07/china-hardens-position-on-south-china-sea/ .
[vi] Stuart Leavenworth, In South China Sea case, ruling on environment hailed as precedent, 20 July 2016, available online at: http://www.csmonitor.com/World/Asia-Pacific/2016/0720/In-South-China-Sea-case-ruling-on-environment-hailed-as-precedent .