Sea Change: the South China Sea Arbitration & Related Negative Impacts on the Marine Environment
Subi Reef before (2012) and after (2015) development by China. Photo source
The South China Sea (SCS) dispute continues to be a major source of conflict and tension both within the SCS region and throughout the Indo-Pacific. Intertwined with the diplomatic issues posed by China’s activities in the SCS are the negative environmental impacts of those activities. In July 2016, an Arbitral Tribunal formed under Annex VII of the United Nations Convention on the Law of the Sea (‘UNCLOS’) issued its Award on the merits of a case instituted by the Philippines. A significant part of the Award addressed the Philippines’ claims that China had failed to protect the marine environment. This involved discussion and application of UNCLOS Part XII; The Protection and Preservation of the Marine Environment.
This essay will first explain three distinct human activities which are having negative impacts upon the marine environment; including the environment within the SCS. These activities are overfishing, microplastic pollution and the release of ballast water from vessels. The way in which each activity causes environmental harm will be described, along with the exact negative impacts of each activity. The three activities illustrate the wide range of ways through which humans are negatively impacting the marine environment. Each activity is also particularly relevant to the SCS. The SCS includes highly productive fisheries that have already been drastically overexploited. It also contains extensive coral reef ecosystems, which are particularly sensitive to overfishing and pollution. In the Arbitration, China was found to have illegally engaged both in harmful fishing and damage to coral reefs. As a critical gateway for a large portion of the globe’s merchant vessels, issues related to ballast water are also particularly relevant to the SCS.
Subsequently, the influence of the Arbitration on the interpretation of Part XII UNCLOS will be analysed. The essay will explain how the Arbitration significantly clarified the scope and meaning of Part XII, and demonstrated the flexibility of this part of UNCLOS. Finally, the key implications of South China Sea Arbitration for the capacity of UNCLOS to protect the marine environment will be discussed. While the decision provides hope that UNCLOS may encourage greater environmental protection through the provision of clear, positive obligations and cooperation between States, the limitations of UNCLOS as demonstrated by the Arbitration are also considerable.
Three ways in which human activities are having negative impacts on the marine environment:
Overfishing is fishing to the depletion of fish stocks, or to the detriment of fishing grounds. Overfishing happens when fish are captured at a faster rate than can be replaced through reproduction. ‘Fish’ here refers to fish, crustaceans, molluscs and other aquatic animals, excluding aquatic mammals, reptiles and plants. In 2020, the Food and Agriculture Organisation of the United Nations reported that a third of the world’s fish stocks are currently being overfished. The SCS is one of the globe’s most important fisheries. However, decades of poor fisheries management in the region have left stocks dwindling, compromising the food security and economies of the rapidly developing nations that surround the SCS. Illegal, unregulated and unreported fishing in the SCS compounds the problems of poor management and impedes the achievement of sustainable management.
Overfishing has been described as one of the most pervasive and significant human impacts on the marine environment, having led to the entire restructuring of marine ecosystems. Overfishing negatively impacts the marine environment through causing the direct depletion of targeted fish species, as well as causing unintended but equally severe effects on non-targeted species (i.e. bycatch) and marine habitats. This depletion and degradation can trigger propagating, indirect change to marine food webs (e.g. trophic cascades) and decrease the resilience of marine ecosystems to climate variability
Marine microplastic pollution
The ubiquitous nature of marine plastic pollution has received significant public attention over the past few years. Microplastics in particular have emerged into the public consciousness as an insidious and deleterious pollutant. High levels of microplastics have been recorded in the SCS. Microplastics are pieces of plastic debris less than five millimetres in length. They come from a variety of sources including larger plastic pieces that have broken apart, resin pellets used in plastic manufacturing, and microbeads, i.e. small, manufactured beads used predominantly in beauty products. As an emerging field of study, little is known about the negative impacts of microplastics on the marine environment, though research to date provides some insight.
The threats microplastics may pose to marine life are of increasing scientific concern as their small size makes them available to a wide range of marine organisms. The ingestion of microplastics by marine organisms may cause adverse effects. Microplastics may be hazardous as they may clump and knot such that they prevent the excretion of unusable or undigested material from the cells or digestive tracts of marine organisms. Additionally, toxic responses may result from a) inherent contaminants leaching from the microplastics, and b) the disassociation of extraneous pollutants which are adhered to the microplastics.
Whether the ingestion of microplastics has significant adverse health effects (e.g. morbidity or mortality) on marine life has not yet been established. However, scientists have hypothesised that microplastics may present a mechanical hazard to small animals as macroplastics do to larger animals, e.g. they may block feeding appendages or hinder the passage of food through the intestinal tract.
Vessel source pollution: ballast water
Ballast water is water from the ocean taken on by vessels to maintain stability between empty and laden voyages into and out of foreign ports. Ballast water usually contains thousands of aquatic microbes, plants and animals which may spread across the world’s oceans as the water is released by the vessel. If unmanaged, ballast water released into foreign ports or waters may introduce a range of invasive marine species. As ship transportation has remained the most viable carriage method in international trade, many country-specific invasions caused by ballast water discharges have been recorded. This has resulted in significant damage to the marine environment.
The introduction of an invasive species into a non-indigenous marine environment can negatively impact that marine environment in several ways. Invasive species create self-sustaining, dominant populations that disrupt the indigenous environment. This is partly because invasive species in non-indigenous ecosystems lack the predators, pathogens and diseases that would usually keep their populations under control. Additionally, invasive species in a new environment often reproduce at a high rate, thrive on disturbance and grow fast. They may even produce chemicals that inhibit the growth of other organisms. This has been particularly observed in plants and has been noted as important in cases of seaweed invasions.
Non-indigenous species introductions have been detected in Chinese waters in recent years. While China has acceded the 2004 International Convention on the Control and Management of Ballast Water and Sediments on Ships and implemented regulations accordingly, it has been suggested that China’s implementation of this Convention could be significantly improved.
Analysis of the influence of the South China Sea Arbitration on the interpretation of Article 192 and other marine environmental protection rules under UNCLOS Part XII
In the South China Sea Arbitration Award, the Tribunal found that through its island construction activities and toleration of harmful fishing activities by Chinese vessels, China had violated articles 123, 192, 194(1), 194(5), 197 and 206 of UNCLOS. China thus failed to protect the marine environment. The Arbitration has influenced the interpretation of marine environmental protection rules under UNCLOS Part XII through confirming that Part XII can evolve through both interpretation and the duty to cooperate. The Arbitration therefore provides significant clarification regarding the appropriate interpretation of Part XII.
Specifically, the Tribunal referenced the 1992 Convention on Biological Diversity (‘CBD’) and the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (‘CITES’) when interpreting UNCLOS articles 192 and 194(5). The Tribunal clarified, by reference to UNCLOS art 237, that specific obligations within other international agreements concluded previously or later than UNCLOS fall under the scope of Part XII. The Tribunal thus imported outside norms into Part XII through the ‘systematic integration’ principle found in the Vienna Convention on the Law of Treaties. The Tribunal’s positive attitude towards utilising this principle in the interpretation of UNCLOS was significant. It confirmed and demonstrated that UNCLOS is more than a mere codification of customary rules. The Arbitration is one example of how the ‘umbrella or framework provisions’ of UNCLOS enable it to work as a ‘living instrument’, i.e. with significant flexibility and in a manner that is responsive to emerging problems.
The SCS Arbitration hence clarified the content of art 192; the general obligation of States to preserve and protect the marine environment. As mentioned, the Tribunal noted the content of art 192 is informed by other Part XII provisions as well as other applicable rules of international law, i.e. other treaties and customary international law. It concluded States can violate art 192 not only through harming the marine environment, but also by failing to take active measures to protect and preserve it. In other words, art 192 contains a positive obligation.
Continuing its interpretation of art 192, the Tribunal considered the art 194(5) obligation to protect and preserve fragile or rare ecosystems as well as the habitats of depleted, endangered or threatened species. The Tribunal concluded art 192 includes a due diligence obligation to prevent the harvesting of endangered species. UNCLOS does not contain a definition of ‘ecosystem’, but the Tribunal stated that the definition in CBD Article 2 is internationally accepted.
The Tribunal utilised the appendixes of CITES (which list species according to their levels of international protection) to determine whether certain species being harvested by Chinese vessels were threatened or endangered. As the lists of species in the CITES appendixes are regularly updated by the Conference of the Parties to CITES, this is an example of how the Tribunal’s interpretation approach in the SCS Arbitration demonstrates how UNCLOS may be updated over time through interaction with other treaty regimes. The universality of both the CBD and CITES was also highlighted by the Tribunal with a view to ensuring its interpretation maintained the integrity and universality of UNCLOS.
Further, the Award was informative in that the Tribunal confirmed that the duty to communicate the results of an environmental impact assessment (EIA) is absolute, regardless of the capacity of the State. This highlighted the importance of the duty to communicate in connection to the art 194(2) obligation of due diligence with respect to prevention, reduction and control of marine pollution. The Tribunal clarified that simple assertions do not provide proof of actual conduct fulfilling the art 206 obligation to communicate. Thus the art 206 duty was greatly clarified.
Finally, the Award emphasised the importance of the duty to cooperate, particularly as a ‘fundamental principle’ in the prevention of pollution of the marine environment under Part XII UNCLOS and general international law. This fundamental duty to cooperate may also drive progressive development of UNCLOS part XII. This is because cooperation between States typically facilitates action, which in the context of Part XII would mean the creation and implementation of instruments, agreements, programs and the like aimed at the protection and preservation of the marine environment. Part XII envisages the development of such initiatives. For example, see UNCLOS art 211(1) concerning vessel-source marine pollution (such as ballast water release).
Implications of South China Sea Arbitration for the capacity of UNCLOS to protect the marine environment
Filipino team in the Peace Palace, the Hague before the commencement of oral arguments related to the Arbitration. Photo source
As discussed, the SCS Arbitration clearly demonstrated that art 192 is a framework provision requiring a living interpretation in light of developments in international law. The capacity of UNCLOS Part XII to evolve and respond to relevant legal developments implies that it will be able to remain effective as an instrument through which States can be guided or held accountable in relation to protection of the marine environment.
The Tribunal’s characterisation of the duty to protect the marine environment under art 192 as a positive obligation also provides hope as to the capacity of UNCLOS to protect the marine environment. In the Award, a clear connection was made between the failure to take steps to protect vulnerable marine species from and the obligation to protect the environment. This interpretation obliges States party to UNCLOS to take active steps in ensuring environmental protection and preservation. This would be more effective in protecting the environment than an obligation to protect that is merely reactive, by which actions may only be taken once some damage has occurred or an environmental issue has worsened to the point of requiring action from the national government of a State.
The duty to cooperate, highlighted in the SCS Arbitration as fundamental, plays a role in the prevention of future environmental harm in cases of provisional measures before international courts. In cases that occurred prior to the SCS Arbitration, i.e. the MOX Plant case (Ireland v United Kingdom) and Land Reclamation case (Malaysia v Singapore), parties were ordered to improve cooperation, consult, exchange information, monitor and assess environmental risks and devise measures to prevent pollution. The importance placed by the Tribunal on the duty to cooperate in relation to Part XII implies that States will continue to be encouraged through UNCLOS to cooperate, coordinate and communicate in order to protect the marine environment. This may improve protection of the marine environment as compliance with international law is brought through cooperation rather than liability.
However, the SCS Arbitration also demonstrated the limitations of UNCLOS in regards to environmental protection. States may increasingly turn to international dispute settlement to resolve matters of marine environmental protection. In order for such processes to be effective, there must be clear evidence that the pronouncements of law within arbitration awards and other decisions of tribunals and courts are being widely implemented in State practice. But the ability of tribunal awards and the like to alter State practice is limited. In the SCS Arbitration, China rejected the jurisdiction of tribunals formed under UNCLOS Part XV. Such non-participation in an international dispute is not unheard of: China is the fourth permanent member of the United Nations Security Council to have done so. Though the Tribunal took great care to ensure this non-appearance prejudiced neither party, this still created a difficult situation for the Tribunal. Since the issuing of the Award, no significant action has been taken by China to remediate the harm caused to vulnerable species by its construction activities. Fishing activities in the SCS have expanded. Hence, in such instances the influence of adjudicatory bodies is limited.
The negative impacts of overfishing, microplastic pollution and ballast water release upon the marine environment are significant. They are also of particular relevance to the South China Sea due to its abundant, yet exploited marine living resources, unique and rich biodiversity (including coral reefs) and status as a prominent shipping gateway. The SCS Arbitration revealed the extent and gravity of the damage China’s fishing and construction activities are having on the SCS marine environment.
The Arbitration influenced the interpretation of Article 192 and other articles under UNCLOS Part XII through demonstrating how Part XII can develop to remain relevant over time. It clarified the scope of the obligations under Part XII and applied them with reference to other applicable rules of international law. It also brought attention to the duty to cooperate as a fundamental principle in the protection of the marine environment. The Arbitration implies that the capacity of UNCLOS to protect the marine environment is substantial but limited. While UNCLOS may encourage State action and cooperation with the aim of marine environmental protection, China’s conduct since 2016 demonstrates that tribunals such as the Permanent Court of Arbitration are limited in their ability to influence State practice.
It remains to be seen whether the underlying role of the marine environment and its resources in the SCS dispute will lead to legitimate efforts aimed at environmental regeneration and protection. What is certain is that both the legal and environmentalist worlds are watching this space.
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