Environmental Aspects of the South China Sea Award

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].

Reading the general obligation to protect and preserve the marine environment in Article 192 of UNCLOS against Article 194(5), and the wider international law just mentioned, the Tribunal held that Article 192 imposes a due diligence obligation both to prevent the harvesting of species recognised internationally as threated with extinction, and to prevent ‘harms that would affect depleted, threatened, or endangered species indirectly through the destruction of their habitat’: [959]. On the facts, the Tribunal was satisfied that China had tolerated and provided protection to the poaching activities of its nationals, and the harvesting of clams via the damaging ‘propeller chopping method’, and thus had breached its obligation of due diligence [964]-[966]. In contrast, the Philippines had not provided sufficient evidence to hold China responsible for a lack of due diligence in preventing the use of cyanide and explosives by Chinese-flagged vessels (see [971]-[975]).

Use of Independent Experts

A notable aspect of the Award is the Tribunal’s extensive reference to the reports of experts appointed by the Tribunal to determine the environmental impacts of China’s construction activities. Appointing independent experts was one of the steps taken by the Tribunal to ensure the Philippines’ claims were well-founded, given China’s non-participation. The Tribunal also posed written and oral questions to the Philippines’ environmental expert: [135]-[136]. Readers will be aware that within ICJ environmental litigation, the Court’s decision not to use its power to appoint independent experts, beyond the experts retained by the parties, has been the subject of debate amongst both ICJ judges (eg compare Pulp Mills, Diss. Op. Al-Khasawneh and Simma [7]-[9] and Sep. Op. Judge Keith [9]-[11]) and commentators (see Foster and Peat).

The Tribunal accepted the conclusions of the independent experts that China’s construction activities had caused and would cause environmental harm beyond pre-existing damage to the reefs: [979]. Given China’s position that its construction activities had followed high environmental standards, the Tribunal asked both the Philippines-appointed and independent experts to locate and assess the claims of Chinese scientists, and also invited China to comment on questions regarding the alleged impact of its construction: [981]. After reviewing the experts’ evaluation of China’s official statements and the claims of Chinese scientists, the Tribunal had ‘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’, meaning China had violated Articles 192, 194(1) and 194(5) of UNCLOS: [983].

Potentially, the Award may be seen as an important instance of international tribunals utilising independent experts to test the claims of the parties, while still retaining control over ultimate factual conclusions and their legal characterisation (see also the use of an independent expert to assess the Philippines’ expert evidence regarding submission 13, on navigational safety [1084]-[1109]).

Application of International Jurisprudence regarding Environmental Impact Assessments (EIAs)

The Award makes a significant contribution to international case law regarding EIAs. Given China’s non-participation, and claims by its officials that its construction activities had been subject to environmental evaluation, the Tribunal sought to identify the views of Chinese experts, referring to documents produced by certain Chinese-funded scientific organisations, and inviting China to indicate whether it had conducted an EIA and to provide the Tribunal with a copy (China did not respond): [921]-[924]. Applying Article 206 of UNCLOS, the Tribunal noted that the only reasonable belief that China could have held was that its island-building activities ‘may cause significant and harmful changes to the marine environment’ meaning China was obliged ‘as far as practicable’ to prepare an EIA and communicate the results of the assessment: [987]-[988], [948]. Interestingly, the Tribunal cited the ICJ’s recent judgment in Construction of a Road (Nicaragua v Costa Rica) [154], for the proposition that a simple assertion by a state that it performed a preliminary assessment of environmental risk does not prove that such an assessment was actually undertaken. Despite the repeated assertions of Chinese officials, neither the Tribunal, the Tribunal-appointed experts, nor the Philippines were:

able to identify any report that would resemble an environmental impact assessment that meets the requirements of Article 206 of the Convention, or indeed under China’s own Environmental Impact Assessment Law of 2002’: [989].

The Tribunal highlighted various requirements imposed by China’s own legislative standards for an EIA: [990]. Significantly, the Tribunal held that neither of the Chinese-funded documents which it had located fulfilled the criteria established by Chinese law, and were ‘far less comprehensive than EIAs reviewed by other international courts and tribunals’ – citing to Uruguay’s pleadings in Pulp Mills – or those filed in foreign construction projects to which the Chinese-funded documents had referred: [990].

Although the Tribunal could not make a definitive finding that China had not prepared an EIA, such a finding was unnecessary to find a violation of UNCLOS Article 206, because this provision requires a state to communicate the results of such assessments. As mentioned the Tribunal had directly asked China for a copy of any EIA: [991].

Duty Not to Aggravate or Extend Disputes before International Tribunals

In its submission 14, the Philippines’ sought a declaration that China had since the commencement of the arbitration aggravated and extended the dispute. Part of this submission, relating to interactions between the two states’ armed forces at Second Thomas Shoal, was excluded as falling within the military activities exception under UNCLOS Article 298(1)(b): [1158]-[1162]. However, jurisdiction did exist over part of the submission relating to China’s dredging and island-building activities at other locations: [1163]-[1165]. The Tribunal held that ‘there exists a duty on parties engaged in a dispute settlement procedure to refrain from aggravating or extending the dispute or disputes at issue during the pendency of the settlement process’, which exists independently of any order by a court or tribunal to this effect: [1169]. Part of the Tribunal’s reasoning as to why China’s construction activities had aggravated and extended the dispute was that it had caused ‘irreparable harm to the coral reef habitat’ at various locations, noting:

Whatever other States have done within the South China Sea, it pales in comparison to China’s recent construction. In practical terms, neither this decision nor any action that either Party may take in response can undo the permanent damage that has been done to the coral reef habitats of the South China Sea: [1178].

The Real Loser: The Environment

The strong statement of the Tribunal just quoted encapsulates one of the difficulties of the Award: while it suggests a flourishing of international environmental jurisprudence, with much citation to other judgments and awards, as the Tribunal recognises, the environmental damage cannot be undone. Even if environmental remediation were possible, the politically polarized setting of the wider dispute means that it is unlikely that any willingness will emerge to engage in cooperation on the basis of the Award, as has occurred in several other environmental disputes before international courts (eg Pulp Mills and Construction of a Road in the ICJ, or Mox Plant and Straits of Johor in ITLOS). It is worth noting that the Tribunal did not make a prospective declaration sought by the Philippines that China inter alia comply with its duties under UNCLOS, including those relevant to protection and preservation of the marine environment, reasoning that this would not add anything to the Award which had already clarified the parties’ rights and obligations: [1182]-[1201].