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Environmental Aspects of the South China Sea Award

Published on July 21, 2016        Author: 

Earlier posts (here and here) have provided a general overview of the much-anticipated 12 July Award of an UNCLOS Annex VII Tribunal in the Philippines v China case. This post will focus on the environmental aspects of the Award. The Tribunal’s consideration of environmental issues is largely contained in the part of the Award dealing with the Philippines’ submissions 11 and 12(B) ([815]-[993]). While these submissions were phrased differently, they both sought declarations that China had violated its obligations under UNCLOS to protect and preserve the marine environment (submission 11 related to various locations whereas submission 12 related to Mischief Reef). The Philippines’ environmental claims related to two aspects of China’s conduct: firstly China’s alleged toleration or support of environmentally harmful fishing practices by its nationals; secondly, the environmental impact of China’s land reclamation and construction activities.

Treaty Interpretation and Due Diligence

The Tribunal’s interpretation of the general obligation under UNCLOS Article 192 to ‘protect and preserve the marine environment’, and the more specific obligations under Article 194 regarding marine pollution, embedded these provisions within wider environmental law. The Tribunal noted that these obligations require states to exercise due diligence and to ensure that activities occurring within their jurisdiction and control do not harm the marine environment, referring to ITLOS’ 2015 Advisory Opinion regarding a state’s obligation to investigate reports by another state of non-compliance by its vessels with provisions of the Convention concerning protection of the marine environment, and the ICJ’s remark in Pulp Mills on ‘due diligence’ requiring a ‘certain level of vigilance’: [944].

In interpreting Article 194(5) of UNCLOS, which requires states to ‘protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species’, the Tribunal drew on several aspects of wider international environmental law. This included having regard to the definition of an ‘ecosystem’ in Article 2 of the Convention on Biological Diversity, the term not being defined in UNCLOS. Based on the scientific evidence before it, the Tribunal had no doubt that the marine environments in question were ‘rare or fragile ecosystems’ and the habitats of ‘depleted, threatened, or endangered species’: [945].
The Tribunal also had regard to CITES, to which both the Philippines and China are parties, in informing the content of UNCLOS Articles 192 and 194(5). The context here was that the sea turtles found on board Chinese fishing vessels were listed under Appendix I of CITES as a species threated with extinction, and the giant clams which had been harvested by Chinese nationals, as well as corals in the area, were listed in Appendix II of CITES: [956]-[957]. The evidence indicated that Chinese-flagged vessels had made widespread use of a particularly damaging technique of breaking up coral with their propellers to extract clams: see [847]-[851], [958]. Read the rest of this entry…

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