Law of the Sea Tribunal Ruling: Loss for China, Win for Environmental Principles?

The Law of the Sea Tribunal released its much anticipated ruling on the Philippines v. China arbitration today.  My previous thoughts on the environmental implications of territorial and maritime disputes in the South China Sea are here.  Today's ruling is a sweeping victory for the Philippines, and a resounding defeat for China.  As many observers have noted, China lost on almost every point.  Its infamous nine-dash line, long used to create an ambiguous legal claim to nearly the entirety of the South China Sea, was invalidated as a result of its incompatibility with the Law of the Sea Convention's exclusive economic zones.  China's claims to certain islands/rocks (and the maritime rights surrounding them) were rejected, as the Tribunal noted that those islands were only habitable as a result of human modification ("reclamation").  And China's aggressive interference with foreign vessels was deemed an violation of sovereign rights.  

Given the resounding nature of the defeat, some are concerned about the long-term ramifications or retaliatory actions that may be forthcoming.  Of existential concern for the Law of the Sea Convention, its Tribunal, and international law in general is China's flat-out rejection of the Tribunal's ruling.  It goes without saying that if one the world's superpowers refuses to play ball with the Tribunal, others are unlikely to do so.  The Tribunal's ruling makes clear that its members don't share this concern, or where content to let the consequences of their ruling play out how they may.

Another aspect of the ruling may have more subtle long-term consequences.  The Convention on the Law of the Sea is comprehensive, with sections and provisions addressing a number of maritime issues.  One of these is the marine environment, and the Convention contains many provisions you might find in other international environmental agreements.  Take Article 192, for example: "States have the obligation to protect and preserve the marine environment."  When negotiating these treaties, states often include similar statements without controversy.  Provisions like Article 192 are broad and difficult to enforce, and therefore not a matter of great substantive debate.

The Law of the Sea Tribunal's ruling may change perceptions that those environmental provisions lack teeth. The Tribunal ruled, without equivocation, that China's actions in the South China Sea were in violation of the Law of the Sea Convention's environmental protection standards:

The Tribunal found that China’s recent large scale land reclamation and construction of artificial islands at seven features in the Spratly Islands has caused severe harm to the coral reef environment and that China has violated its obligation under Articles 192 and 194 of the Convention to preserve and protect the marine environment with respect to fragile ecosystems and the habitat of depleted, threatened, or endangered species. The Tribunal also found that Chinese fishermen have engaged in the harvesting of endangered sea turtles, coral, and giant clams on a substantial scale in the South China Sea, using methods that inflict severe damage on the coral reef environment. The Tribunal found that Chinese authorities were aware of these activities and failed to fulfill their due diligence obligations under the Convention to stop them.  

Most likely, the Tribunal could have invalidated China's maritime claims without invoking these environmental provisions, but by doing so the Tribunal makes clear that broad, relatively ambiguous provisions about environmental protection are not meaningless.  They do, in fact, have teeth, and they can be used to invalidate state practices.  

As with the rest of the Tribunal's opinion, China (and the rest of the international community's) reaction to the ruling will be consequential; if the ruling is soundly rejected then environmental protection standards found in many international agreements will remain somewhat obscure.  And it remains to be seen how the Tribunal's ruling will be enforced.  

But so far states appear to be rallying behind the Law of the Sea Convention and the Tribunal, as rejecting those institutions would create uncertainty over maritime rights and responsibilities most states probably don't want to deal with.  The ruling is a win for the Philippines, but long-term, the Tribunal's invocation of environmental protection provisions may prove to be an even bigger win for the marine environment.

3 perspectives on South China Sea island-building

China's 9-Dash Line.  Image: Asia Maritime Transparency Initiative.

Ever since China released their 9-dash-line interpretation of territorial and maritime claims in the South China Sea, it has appeared to many outside observers that the legal ambiguity of the claims has been a deliberate strategy.  Instead of providing a detailed legal claim to the South China Sea's many islands, reefs, and atolls (which would be very hard to pull off), China has preferred to make incremental progress "reclaiming" reefs.  This way, China can negotiate each individual conflict one-on-one with another claimant, a situation that gives China considerably more leverage.  A recent investigation of internal divisions in China offers a fresh take on this strategy of ambiguity.  Here's Feng Zhang:

[I]n reality, it’s not at all clear that China itself really knows what it wants to achieve in the South China Sea. Broadly speaking, there are three schools of thought among Chinese analysts about optimal policies toward the region: let’s call them realists, hardliners, and moderates [...]

China’s realists believe that the fundamentals of China’s current South China Sea policy are sound, with no adjustment needed. They recognize the diplomatic and reputational costs incurred, but tend to slight them because they value China’s physical presence and material capability much more highly than its image abroad [...] But they are uncertain about what to do with the newly constructed islands. Should Beijing push for a new round of military installations including placing offensive weapons systems, or are defensive equipments really sufficient for the status quo?

A second school of thought — the hardliners — provides alarming answers to the questions realists haven’t yet answered. Not only do they think China should present the seven new islands —constructed out of existing features, including Fiery Cross Reef, Subi Reef, and Mischief Reef — as faits accompli to the outside world, but China should further expand its territorial and military reach in the South China Sea [...]

Moderates argue that China needs to gradually clarify the Nine-Dash Line. Maintaining deliberate ambiguity would simply make the map a historical burden and an unnecessary obstacle to reaching diplomatic compromise. In their view, it is counterproductive to interpret the map as a territorial demarcation line, because doing so would make China an adversary of most Southeast Asian states as well as the United States. 

If this more nuanced understanding of Chinese territorial and maritime strategy provides some hope to the environmental community that destructive island building will cease if moderates succeed in scaling back reef reclamation, Zhang throws cold water on the idea:

The moderates differ much from the realists and the hardliners. But the three share an extremely important area of agreement: the necessity of island-building. During my extensive conversations with leading Chinese scholars and government officials since last year, I have not come across a single person who would say island building is a mistake. 

Needless to say, that is an unfortunate point of agreement for the South China Sea's marine ecosystem.  China is not the only country engaging in reef reclamation, of course, but if China doesn't scale back, others are unlikely to do so on their own.  All of this places even more scrutiny on the Law of the Sea Tribunal's forthcoming decision, expected this fall. The Philippines v. China case has the potential to affirmatively reject the 9-dash line.  That may not in itself prevent continued island building, but it would help build a case that the region's sensitive ecosystems should be a point of cooperation, not conflict.

COP 21: Paris Agreement won't address emissions from shipping

Totally agree @Maria_Skipper: "We need flag neutral regulation of CO2 for #shipping, 70% of global fleet is in non annex 1 countries" #COP21

— John Kornerup Bang (@JohnKornerupBan) December 5, 2015

Shipping & aviation... the elephants in the room of #COP21 https://t.co/Z28AnUhzNu #Paris2015 pic.twitter.com/qWtYK2VfhK

— TckTckTck (@tcktcktck) December 4, 2015

#BunkerFuel Paris climate talks: Weak text on shipping looking likely https://t.co/nFKUGYO7II

— Bunkerworld (@bunkerworld) December 7, 2015

The European Union released a report last week claiming that the global shipping industry may account for 17 percent of global GHG emissions by 2050 (it already accounts for 2.4 percent).  If the industry were a country it would be the sixth largest polluter.  But because it isn't a country, and the industry as a whole lacks meaningful regulation, the Intended Nationally Determined Contributions (INDCS) countries are putting forth to validate their emissions cuts don't account for the shipping industry.  That responsibility falls to the International Maritime Organization, a UN body with regulatory authority but little capacity to impose new rules on the world's existing shipping fleet. 

The original draft of the Paris Agreement included some language that would address shipping emissions, but the latest draft has dimmed the prospect of regulating the notoriously elusive industry.  At best it might implore the IMO to create GHG emissions reductions targets.  Putting the industry on notice that its emissions will be a concern going forward is better than nothing, but certainly a disappointment to climate activists.  Ben Adler's take:

There are many ways in which regulations could bend the industry’s emissions curve downward. The most obvious would be stricter and more broadly applied fuel-efficiency standards. The IMO could also set speed limits, as ships emit less when moving slower. Alternative fuels could be researched and deployed. Also, ships use a lot of electricity for on-board operations, and that could be generated using sources other than oil, as cargo ships are big enough to support solar panels or even wind turbines.

The IMO, despite having commissioned a report that demonstrates the scope of the problem, has yet to take action. Critics suggest that bureaucratic inertia and coziness with the shipping industry could be to blame. So it may need a push.

Precisely because it is so central to economic activity, shipping is a touchy subject for the international community to tackle. As a small island nation, the Marshall Islands is as economically dependent on shipping as anyone. More so, in fact: 6.1 percent of the world’s ships (by tonnage) are registered in the Marshall Islands and provide a major source of its tax revenue. That’s why it’s afraid to act alone to regulate ships. If it were the only country to impose new rules on ships flying under its flag, the ships would just register elsewhere. But the Marshall Islands isn’t afraid to push for strong global rules that would be the same for ships registered in any country. Whatever risk to its economy that might pose, it pales in comparison to climate change.

The Lawlessness of Shipping Goes Mainstream

I've been fascinated by the shipping industry for a while now.  My father was in the merchant marines, and I grew up on the Mississippi River where barges still carry coal, grains, and other goods from Minneapolis to New Orleans.  It was Rose George's Ninety Percent of Everything that really piqued my interest in the lawlessness of the shipping industry.  Using her own journey aboard large container ships as a backdrop, George reveals the surprising truths about shipping: the lawlessness of the high seas, environmental damages, threats from piracy, appalling labor conditions, jurisdictional ambiguities, and suspect financing.   According to George, it's cheaper for Scottish fishermen to ship their fish to and from China to have them filleted than to have them filleted in Scotland.  There are also myriad legal angles to explore, including the difficulties of enforcing crimes on the high seas when no country wants to take jurisdiction of a case.  Almost as curious is how little play the shipping industry gets in mainstream discourse.

But Ian Urbina and his team at the NYT made waves this month when they published a brilliant piece on the topic.  Ian talks about how one repeat offender ship prompted his work:

I had what an author, Rose George, calls “sea blindness”: a myopia common among land dwellers who view the ocean as a brackish blotch over which cross-continental travelers need to fly to get where they are going. Rarely do shipwrecks, or acts of fatal violence at sea, make the evening news. Ms. George is right: If all the stories of boats meeting calamitous ends instead involved airplanes falling from the sky or coal miners getting trapped underground, “we would probably hear about it.”  The Dona Liberta cured me of my sea blindness.

The Dona Liberta works as a case study of the shipping industry as a whole:

As the rusty refrigerator ship moved across two oceans and five seas and among 20 ports, it routinely abused, cheated and abandoned its crew, caused an oil slick nearly 100 miles long, and drew citations from a half-dozen countries for other environmental violations. Creditors chased its owner for millions of dollars in unpaid debts, and maritime watchdog groups listed its parent company as an illegal fishing suspect. Still, the ship operated freely and never lacked for work or laborers.

When wrongdoing occurs, no single agency within a country or specific international organization typically has a sufficient stake in the matter to pursue it. The stowaways on the Dona Liberta, for example, were undocumented immigrants from Tanzania, living in South Africa and brought to shore in Liberia. The ship was owned by a Greek company incorporated in Liberia, crewed primarily by Filipinos, captained by an Italian, flagged to the Bahamas and passing through international waters. 

The NYT has follow-up on the lawlessness of the sea here, here, and here.  My thoughts on lawfare taking place in the South China Sea here.

Image: SkyTruth; NYT.

Introducing "Cooperative Federalism in Biscayne National Park"

Stiltsville homes in Biscayne National Park.  Photo: Ryan Stoa.

For the past few months I've been working on an article about Biscayne National Park.  More specifically, I've been looking at the unique relationship between the state and federal government when it comes to fishery management.  With the National Park Service releasing its Final General Management Plan for the park last month, I'll be excited to post my draft on SSRN sometime next week.  In the meantime, here is an early draft of the introduction: 

The National Parks of the United States are nothing if not unique.  Active volcanoes, the world’s longest cave system, geothermal geysers, the largest island of the world’s largest lake, and the tallest trees on Earth can be found in the National Park System, among other natural wonders.  Some parks receive millions of visitors and are international tourist destinations – Grand Canyon National Park receives over 4.5 million visitors each year.    Others are so remote they don’t have park facilities and receive around a thousand visitors monthly.  

Biscayne National Park is neither remote nor highly frequented.  Despite its location within Miami-Dade County (population 2.66 million), the park receives only slightly more than half a million visitors annually.  That’s less than Denali National Park in Alaska, which is serviced by a single gravel access road.  North of Biscayne National Park lies the highly developed barrier islands of Key Biscayne and Miami Beach, as well as the Port of Miami, the world’s largest cruise port.  To the south lie the Florida Keys, and to the west the city of Miami, including a solid waste landfill and nuclear power plant visible from the park.  

Nestled between these bustling coastal developments is Biscayne National Park, the largest marine national park in the United States with 95% of its 173,000 acres located underwater.  The marine nature of the park sets it apart in various ways.  Much of BNP’s waters can only be accessed with a boat; on the other hand, with a boat nearly all of BNP can be accessed.  The park has four distinct ecosystems, including mangrove shorelines, estuarine shallows, barrier islands, and coral reefs.  These ecosystems sustain more than 100 species targeted by recreational and commercial fisheries.  In fact, BNP’s lucrative marine resources are what prompted Congress to protect the area in the first place.  As a result, management of the park and its resources plays an out-sized role in the South Florida tourism and fishing industries.  It also becomes highly controversial.

Aside from its marine character, Biscayne National Park is unique in the National Park System for the way in which its implementing legislation dictates the relationship between the National Park Service and the State of Florida.  With respect to fishing, Congress decreed that “the waters within the park shall continue to be open to fishing in conformity with the laws of the State of Florida.”  In other words, the state retains jurisdiction over fishing regulation and management in the park.  For a park that is mostly underwater and whose primary natural resource is fish, this reservation is a significant concession.  The reserved power notwithstanding, Congress simultaneously authorized the Secretary of the Interior to “designate species for which, areas and times within which, and methods by which fishing is prohibited, limited, or otherwise regulated in the interest of sound conservation to achieve the purposes for which the park was established,” giving the NPS the ability to impose their own fishing regulations in the park.  But, in waters donated by the state after establishment of the park, fishing must be regulated in conformity with state law. 

While these seemingly overlapping and contradictory mandates are confusing, Florida and the NPS have agreed in principle to manage fisheries uniformly within park waters.  That is likely a wise approach, as fishing compliance and enforcement would be challenging for all stakeholders involved if a multitude of marine jurisdictions in close proximity to each other had their own regulatory requirements.  On the other hand, it forces the state and federal government into a unique partnership, with each having arguably equal bargaining power over fisheries management. 

States and the federal government have been engaging in “cooperative federalism” for decades, through state implementation of federally-funded programs or state compliance with minimum federal standards.  In the field of environmental law, cooperative federalism takes place through state-managed compliance with the Clean Air Act and Clean Water Act, or the development of Coastal Zone Management Plans.  Cooperative federalism is less common in natural resources law, which is more place dependent and therefore subject to jurisdictional and territorial divides.  It is especially rare in the National Park System, where responsible park management must include state and local stakeholder involvement, but rarely provides so much legal authority to the state.  Biscayne National Park is therefore unique for both its marine and governance characteristics.

This article explores Biscayne National Park’s federalism contours in order to assess whether its management paradigm provides a workable model for replication in waters (or lands) of the United States and around the world.  Materials supporting this research include implementing legislation, state and federal regulations, management policies, inter-agency documents and communications, and direct stakeholder interviews (including consultations with federal, state, and local officials).  Ultimately there are some clear drawbacks to the BNP cooperative federalism model: namely, that dual control over fisheries management lengthens and increases the cost of the joint policy-making process. However, the synergistic effect of joint management is that NPS planning is more integrated with local legal frameworks, is more responsive to stakeholder needs, and receives the sense of ownership from surrounding communities that is so critical to the long-term sustainability of natural resources management.  Cooperative federalism in BNP has expanded the role and influence of the park beyond its borders, producing an overall positive outcome for stakeholders and the marine environment.  The research suggests that, while BNP may be unique geographically and politically, a similar governance model could produce similar benefits for other public lands, waters, and natural resources.

Cuba's New Environment: offshore oil and gas

Photo: United Nations Photo

When Cuba and the United States announced in December 2014 a mutual desire to re-establish and improve diplomatic relations, it was clear the process wouldn't take place overnight.  Members of Congress remain skeptical, while Cuba has a long ways to go to satisfy western standards for human rights and open governance.  But the writing is on the wall, and  governments and foreign investors are lining up for their chance to tap into the Caribbean's largest country (by population and land area) and its vast natural resources.  Last week French President Francois Hollande became the first European leader to visit the island since 1986.  He brought with him a contingent of French business executives, just as diplomats from Japan, the EU, and Russia brought their own private sector leaders in recent visits.  French oil giant Total is now rumored to have struck a deal to explore off-shore oil reserves in Cuba's waters.  More foreign investment agreements are sure to come this year.  

Lifting the Cuban embargo is sure to transform Cuba's economy, and in many ways, the mere anticipation of it already has.  But it will radically transform Cuba's environment as well.  The sectors most likely to see dramatic change implicate environmental laws and regulation that were not designed to absorb rapid changes: transportation, agriculture, tourism, and oil and gas development.  I will be following US-Cuba relations in the coming months with an eye toward what this all means for the environment.  First up: regulation of off-shore oil and gas development.

It would be too simplistic to say that lifting the embargo would be good or bad for the Cuban environment, and that's true of the oil and gas sector in particular as well.  On the one hand, economic isolation has likely depressed oil and gas exploration in Cuban waters, keeping sonar, construction, shipping, and drilling constructions out of marine ecosystems, while keeping fossil fuels in the ground.  The lack of activity means the likelihood of a catastrophic oil spill reaching the shores of Cuba or Florida is low.  On the other hand, a lack of diplomatic relations with Cuba means the US doesn't have a bilateral agreement in place to deal with an oil spill.  The isolation also prevents collaborative research between US and Cuban researchers from looking at ways to improve natural resources management and disaster planning.  Florida state law, for example, prohibits state university researchers from conducting research in Cuba or Cuban waters.  Lifting the embargo may reverse both trends, increasing oil and gas development as well as contingency planning and research.

Cuba understands that its energy status quo is not ideal.  It produces about half of its own oil, mainly for industrial use.  The other half it receives from Venezuela in exchange for healthcare support.  Relying on a single source for half of your energy needs is not ideal under normal circumstances, much less when that source is undergoing political turmoil, so Cuba has an interest in diversifying.  It has plans to increase renewable energy production (98% of electricity comes from fossil fuels), but sees its offshore oil and gas reserves as the path toward energy independence.  Cuba estimates that it's Exclusive Economic Zone (EEZ, waters over which it has oil and gas rights) contains around 20 billion barrels of undiscovered crude oil.  The US Geological Survey has estimated Cuba's EEZ to contain around 5 to 7 billion.  Either way, Cuba intends to find and develop its reserves, and has already partnered with China, Brazil, and Venezuela to develop critical infrastructure.  

There are reasons to doubt an immediate expansion of oil and gas development in Cuba, including low oil prices and new opportunities in Mexico.  But drilling is likely to occur sooner or later, and that's where US-Cuba agreements, regional disaster planning, and US laws are ill-prepared.  An oil spill off the northwestern coast of Cuba would hit Florida within 6 to 8 days.  And yet, Cuba and the United States don't have a bilateral agreement in place to deal with that scenario.  The US and Mexico have a bilateral agreement that regulates oil and gas development in the Gulf of Mexico, establishing safety standards, emergency protocols, and inspection procedures.  A similar agreement is needed to protect the Florida straits.  Domestically, US law impedes oil spill response by limiting the number of licenses issued to companies that are pre-approved to provide oil spill services in Cuban waters.  As mentioned above, it is difficult for researchers to study Cuba's coastal and marine environments without federally-approved licenses and visas.  And if a spill originated in Cuba's EEZ, the Oil Spill Pollution Act wouldn't be able to extract compensation for damages.  The Oil Spill Liability Trust Fund could provide relief, but it lacks meaningful and readily-accessible relief funds.  

Sooner or later Cuba's off-shore oil and gas reserves will be exploited.  Its reliance on Venezuela and a potential increase in demand from economic development and tourism will force it to uncover every rock.  Cuba can help itself by diversifying into renewable energy, particularly as a source of foreign investment.  Negotiations between the US and Cuba should prioritize cooperation over oil and gas development and emergency response, and come up with a treaty that enumerates safety standards, roles, and responsibilities.  Domestically, the US should make it easier for US companies to participate in oil spill response efforts, and ease restrictions on researchers to simulate environmental impacts and collaborate with Cuban universities.  The dominoes are starting to fall, and for the sake of the Caribbean environment and coastal communities in Cuba and Florida, international and domestic laws must be in place to minimize the damage.  

Cuba, the Bahamas, and Florida from space.  Photo: NASA

Environmental Peacebuilding in the South China Sea, Ctd

Now that recent satellite images have revealed the extent to which Vietnam, the Philippines, Malaysia, and China are rapidly reclaiming coral reefs in the South China Sea, the countries are scrambling to come up with valid legal justifications for the brinkmanship.  

The Philippines is denying wrong-doing by claiming that its reclamation work constitutes maintenance, distinguishable from large-scale construction that would clearly implicate China:

The Philippine foreign minister denied China's accusations of recent massive reclamation, saying the country had done minor, but legal, repair and maintenance within its 200-mile Exclusive Economic Zone in the disputed area some years ago.  "We were doing some repairs and maintenance after the Declaration of Conduct of Parties in the South China Sea (DOC) but repairs and maintenance is allowed," Albert del Rosario said.  "Massive reclamation is not." 

Vietnam, so far, has kept a low profile since new images were released showing expanded construction in the Spratly Islands chain.  China's approach has been surprisingly proactive, acknowledging their own extensive reclamation efforts but framing them as necessary steps to fulfill obligations to the international community.  Its territorial expansions, supposedly, will be used to facilitate disaster relief, ocean and weather monitoring, and maritime search and rescue.  China even invited the United States to use their facilities for those purposes "when conditions are right."  

It is a shrewd argument that justifies China's reef building on the one hand, while undercutting the claims of its neighbors since they are not major powers with commensurate obligations to the international community.  If providing public services were a genuine objective it might provide some assurances to the United States and other countries that are concerned there may be impediments to navigation and overflight as a result of the territorial claims, though China could always claim "conditions aren't right" for joint use.  Unfortunately most of the installations appear militarized or have potential for militarization.  Even if that weren't the case, the real value of the reclamation work may not the be the installations themselves, but the maritime rights that would attach - in addition to fisheries and tourism, the waters of the South China Sea have untold oil and gas reserves.  

Image: CSIS Asia Maritime Transparency Initiative