The ‘Internationalization’ of Maritime Disputes in the South China Sea: Environmental Destruction in the High Seas and Threats to the Global Commons

What does it mean to ‘internationalize’ a maritime dispute? Accusations of ‘internationalization’ of the maritime disputes in the South China Sea have been strident over the past weeks, most recently from the 18 April 2016 Joint Communique of the Foreign Ministers of the Russian Federation, the Republic of India, and the People’s Republic of China, which stressed that “Russia, India and China are committed to maintaining a legal order for the seas and oceans based on the principles of international law, as reflected notably in the UN Convention on the Law of Sea (UNCLOS). All related disputes should be addressed through negotiations and agreements between the parties concerned. In this regard the Ministers called for full respect of all provisions of UNCLOS, as well as the Declaration on the Conduct of Parties in the South China Sea (DOC) and the Guidelines for the implementation of the DOC.” (Joint Communique, para. 21). Russian Foreign Minister Sergei Lavrov was also reported to have observed to Chinese media in Moscow during the Russia-China-India April 2016 trilateral summit that “[attempts to internationalize the issue] are completely counterproductive. Only negotiations, which China and the ASEAN are pursuing, can bring the desired result; namely, mutually acceptable agreements” – a sentiment echoed by Chinese Foreign Minister Wang Yi who was also reported to have voiced his opposition to the ‘internationalization’ of the South China Sea dispute on the basis of the Philippines’ “unilaterally-proposed arbitration case”. Chinese President Xi Jinping reiterated the call for negotiations only between the states involved, reportedly implying  nations outside the region such as the United States have “no role in regional disputes”.  The Russia-China-India trilateral statement came one week after the G7 Summit in Hiroshima, Japan, yielded the April 11, 2016 G7 Foreign Ministers’ Statement on Maritime Security, which stated, among others, that the G7 “express[es]… strong opposition to any intimidating, coercive or provocative unilateral actions that could alter the status quo and increase tensions, and urge all states to refrain from such actions as land reclamations including large scale  ones, building of outposts, as well as their use for military purposes and to act in accordance with international law including the principles of freedoms of navigation and overflight. In areas pending final delimitation, we underline the importance of coastal states refraining from unilateral actions that cause permanent physical change to the marine environment insofar as such actions jeopardize or hamper the reaching of the final agreement, as well as the importance of making every effort to enter into provisional arrangements of a practical nature, in those areas.” (G7 Statement, para. 5).  

To recall, after the Philippines filed its Notice of Arbitration against China in January 2013, China chose not to participate in the arbitration and instead commenced massive land reclamation activities over nine disputed features in the South China Sea, apparently building various multi-use facilities such as military bases, airstrips, and other permanent installations on each of these artificial ‘islands’. The latest feature reported to be up for Chinese land reclamation in 2016 is Scarborough Shoal, one of the subjects of the Philippines v. China arbitration. After the UNCLOS Annex VII arbitral tribunal’s October 2015 Judgment on Jurisdiction and Admissibility affirmed its jurisdiction over the objections indicated in China’s publicly issued Position Paper (which I had previously examined here and here), China was reported to have accused the Philippines of “provocation” for seeking international arbitration in this dispute, denouncing the arbitration process as “illegitimate”. Pending the UNCLOS Annex VII arbitral tribunal’s award on the merits in Philippines v. China, China also moved swiftly to secure a “Four-Point Consensus” agreement of ASEAN Member States Brunei Darussalam, Laos PDR, and Cambodia declaring “that the South China Sea territorial dispute should not affect relations between China and the Association of South East Asian National (ASEAN)…China and ASEAN countries are able to jointly maintain peace and stability in the South China Sea through cooperation.  Countries outside the region should play a constructive role rather than the other way around.” Former ASEAN Secretary General Ong Keng Yong (currently Singapore’s Ambassador-at-Large and Executive Deputy Chairman of the Rajaratnam School of International Studies in Singapore) sharply criticized China’s ‘Four-Point Consensus’ as Chinese interference with the domestic affairs of ASEAN that seeks to divide ASEAN in advance of the anticipated UNCLOS Annex VII arbitral award on the merits, noting that China sought consensus and support from Cambodia and Laos who are non-claimant states in the South China Sea disputes. China is reported to be continuing its massive naval and military buildup in the South China Sea, deploying fighter jets to the disputed region, and reportedly also planning to develop floating nuclear power plants to serve the airfields, ports, lighthouses, barracks, and radar systems built throughout the reclaimed artificial islands in the South China Sea.

Given the multitude of developments and escalations in the South China Sea disputes, it is unsurprising that virtually little, if any, progress to date has been reached in producing the long overdue ASEAN-China Code of Conduct envisaged under the 2002 Declaration on the Conduct of Parties in the South China Sea. While ASEAN Member States such as Indonesia, Vietnam, and Malaysia have chosen to articulate official protests or public opposition against various incidents otherwise described as Chinese “breaches of sovereignty”, the United States and the Philippines concluded a 10-year Enhanced Defense Cooperation Agreement (EDCA) in 2014, the legality of which was recently upheld by the Philippine Supreme Court. The EDCA revived a US-Philippines strategic alliance that had long been waning after the closure of the Subic and Clark military bases in 1991. The EDCA would intensify US-Philippine joint maritime patrols and exercises, and other related freedom of navigation activities in the South China Sea, as well as authorize US military access on a rotational basis to agreed locations throughout Philippine archipelagic territories. The rapid pace and scale of China’s land reclamation/artificial island building activities led United States Defense Secretary Ash Carter to warn China in March 2016 against continuing its “aggressive” actions in the South China Sea region, underscoring that “China must not pursue militarization in the South China Sea”.  The March 2016 warnings call to mind the United States’ policy positions set out in its 2015 Asia-Pacific Maritime Security Strategy to ensure “adherence to a rules-based system” consistent with the “United Nations Convention on the Law of the Sea…which reflects customary international law with respect to traditional uses of the ocean.” (Strategy document, p. 2.) The United States has continued to conduct “freedom of navigation operations” that have drawn the ire of China, who, in turn, subsequently accused the United States of “militarizing” the dispute and “aggravating regional disputes, trigger(ing) tensions and undermin(ing) peace and stability in the South China Sea.” Significantly, the durability of the US-Philippines alliance has now become a pivotal issue for the May 9 Philippine presidential elections, after controversial presidential frontrunner Rodrigo Duterte stated that he was open to joint exploration activities with China, opening the Philippine islands to foreign multinational leases, and possibly cutting off diplomatic ties with the United States and Australia, even if he now expresses support for the Philippine arbitration against China.

Against the foregoing developments, has the South China Sea dispute been ‘internationalized’, and if so, by whom? One should first recall the legal definition for the ‘internationalization’ of a dispute, where:

“…the territorial sovereignty of a specific State is limited in favour of another State, a larger group of States or the community of States as a whole. Even though the benefit of internationalization may accrue to only one State, such benefit must be founded on the common interest of a larger group of States. Internationalization always results in the establishment of some form of direct or indirect international administration. Such administration may be exercised by an international organization or by one or more States acting on behalf of the community of States…The concept of internationalization is characterized by three elements: the abolition or limitation of the sovereignty of a specific State; the serving of community interests or at least the interests of a group of States; and the establishment of an international institutional framework, not necessarily involving an international organization.” (Italics added.) [Max Planck Encyclopedia of Public International Law, Vol. 10, (1987), at p. 268. See also Territorial Jurisdiction of the International Commission of the River Oder, United Kingdom v. Poland, PCIJ Series A no. 23, 10 September 1929, at paras. 59-60.]

Following the above definition, one would be hard put to accept that the South China Sea disputes have indeed been concretely ‘internationalized’ beyond the claims of China, the Philippines, Malaysia, Brunei Darussalam, Viet Nam, (and also markedly reasserted recently by Taiwan). The third element of ‘internationalization’ is lacking, since there is no “international institutional framework” that definitively binds all parties to the South China Sea disputes, other than the commitments these States assume under UNCLOS and related instruments such as the 2002 ASEAN-China Declaration, whose paragraph 5 states that “parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.” While China’s concept of ‘internationalization’ of the South China Sea dispute would appear arguably consistent with its position that it has sovereignty over the entirety of the area encompassed by its 9-dash line map, the assertion of sovereign rights arising from the alleged validity (or invalidity) of such a map is by no means a settled legal question, all the more so when this matter is precisely pending before the Philippines v. China arbitration tribunal which has yet to issue its award on the merits on the alleged (in)compatibility of the 9-dash line map with the UN Convention on the Law of the Sea (UNCLOS). Neither can it be concluded that the United States’ military presence in preexisting bases throughout the archipelagic land territory of the Philippines – by express agreement and consent of the latter State – could in any way comprise any degree of erosion or limitation of Chinese sovereignty, unless the international community is expected to assume a priori the validity of the 9-dash line map and China’s claim to the entirety of the maritime area encompassed within the 9 dashes of that map. Moreover, in assessing the international lawfulness of “freedom of navigation” operations in the South China Sea, one must also recall that warships and other government vessels enjoy freedom of navigation and complete immunity from jurisdiction on the high seas, both under UNCLOS Part VII and applicable customary international law [see Corfu Channel case, United Kingdom v. Albania, Merits, (1949), at p. 28:  “…in accordance with international custom…State in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorization of a coastal State, provided that the passage is innocent.”].  Navigation operations within those parameters in the high seas, therefore, cannot be deemed to have ‘internationalized’ the South China Sea dispute in any way.

Beyond the plane of competing maritime and/or territorial claims of States in the South China Sea, however, a more plausible basis for the ‘internationalization’ of the South China Sea disputes that could directly implicate the international community would most likely lie with the injury to its erga omnes interests, which stand in jeopardy as a result of the continued land reclamation activities in the South China Sea, specifically through the rampant ongoing environmental destruction and dredging of the coral reefs, seabed, ecosystems and other natural resources in the high seas of the South China Sea, which fall well within the global commons and also constitutes one of the world’s busiest waterways. If there is any feasible argument to be made in favor of the ‘internationalization’ of this dispute through the establishment of an international institutional framework devised to protect the interests of the global commons, perhaps one ought to be devised to address the alleged catastrophic environmental damage in the high seas of the South China Sea from the land reclamation activities. Matthew Southerland’s recent April 12, 2016 Report to the US-China Economic Review Commission starkly describes the damage thus:

“China’s island building in the South China Sea buried a large area of coral reefs. Chinese dredgers deposited sand and gravel on top of about 13 square kilometers (approximately five square miles) of coral reefs China occupies, a process that destroys the coral underneath. Chinese activities associated with land reclamation on these reefs— such as creating access channels for ships or dredging harbors—also destroyed portions of them. For example, in dredging its deep-water harbor at Fiery Cross Reef (see Figure 1), Chinese dredgers would have destroyed coral and other organisms (assuming the reef had not already been damaged). Furthermore, Frank E. Muller-Karger, professor of biological oceanography and remote sensing in the College of Marine Science at the University of South Florida, explained to the New York Times that in the process of island building the sediment deposited on the reefs ‘can wash back into the sea, forming plumes that can smother marine life and could be laced with heavy metals, oil and other chemicals from the ships and shore facilities being built.’…

Chinese dredgers in the Spratly Islands extracted the sand and gravel from within the lagoons and reef flats of coral reef atolls* at the land reclamation sites—a process known as shallow-water dredging (see Figure 2 for a diagram of an atoll and Figure 3 for satellite imagery of dredgers at Mischief Reef). This shallow-water dredging removes not only sand and gravel, but also the ecosystems of the lagoon and the reef flat, important parts of a reef. Moreover, dredgers stir up plumes of sand and silt that damage coral tissue and block sunlight from organisms such as reef-building corals, which cannot survive without it…In addition, Chinese dredgers may have gathered sand and gravel for the artificial islands from nearby atolls and other reefs in the Spratly Islands, although the Chinese government has not acknowledged that dredging at these reefs has occurred. (It is difficult for outside observers to access the Spratly Islands. Obstacles to reaching the area have included opposition from the Chinese and Philippine governments to traveling there, the remoteness of the area, and the high cost of such trips.) If this dredging occurred, and even if these reefs had not been previously damaged, they still may not fully recover for up to 10 to 15 years. That time frame could become longer if dredgers continue to disturb the reefs. Sand and silt stirred up by dredgers settles on the coral, which can cause problems such as lowering coral growth rates, inhibiting coral reproduction, and increasing coral’s susceptibility to disease.

Satellite imagery can provide a powerful tool to analyze this problem because some dredgers leave arc-shaped marks in the sediment that can be visible in these images. However, similar marks are made by the propellers of boats harvesting giant clams, which complicates the identification of damage caused by dredging. Analysis of satellite imagery, news reports, videos, and other sources reveals that large-scale scarring of coral reefs from the harvesting of giant clams—an endangered species—in the Spratly Islands and the Paracel Islands has certainly occurred over the past few years; fishermen from China caused much of this damage. The Chinese Academy of Sciences South China Sea Institute of Oceanology, an institute that has conducted multiple research trips to the Spratly Islands over its history, did not respond to questions submitted by the Commission staff about the environmental impact of China’s dredging and island building.”

Admittedly, the long-term implications of the environmental damage from dredging activities are disputed. Some Chinese experts, for example, have publicly taken the view that any damage to coral reefs in the South China Sea is, in their view, “recoverable…[and that] strict ecological protection measures were guiding the construction China is carrying out.” However, the disputed scientific evidence on the impacts of Chinese mass dredging of the coral reefs in the high seas and land reclamation activities in the South China Sea should not inhibit lawful international action to stem possible environmental damage. As the International Court of Justice demonstrated in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), it indicated provisional measures in 2011 against Nicaragua’s dredging activities in the San Juan River (Order of 8 March 2011, paras. 79-81), even if it ultimately found on the merits that Costa Rica had not been able to establish causation for such asserted environmental damage.

In the case of ongoing land reclamation activities in the high seas of the South China Sea, the international community should not be barred from taking a “precautionary approach” [Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Reports (2010), para. 164; see also Southern Bluefin Tuna cases (New Zealand v. Japan) (Australia v. Japan), ITLOS Cases Nos. 3 and 4, 27 August 1999, at para. 77 (“parties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm…”)], that should include actively seeking information on the impacts of the reclamations from the state undertaking dredging activities [see Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Singapore v. Malaysia), Award, 1 September 2005, at para. 11], as well as establishing terms of cooperation with all claimants to design an interim international cooperative framework that implements States’ UNCLOS Article 191 and 192 duties to protect the marine environment, pending the ultimate final resolution of the multiple maritime delimitation claims in the South China Sea. It is this kind of ongoing endangerment of, and massive risks to, the global commons in the South China Sea – the high seas, seabed, natural resources, fish stocks, coral reefs, and home to “more marine biodiversity than anywhere else in the world” – that takes this dispute beyond China’s insistence on bilateral negotiations with individual claimants in the South China Sea, and warrants the actual ‘internationalization’ of this dispute to the international community.