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.

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.

Multilateralism and the "Three Principles for the Rule of Law" in the South China Sea

Multilateralism and the "Three Principles for the Rule of Law" in the South China Sea

Two recent developments in the ongoing South China Sea dispute would suggest countries in the region are getting closer to a peaceful resolution.  The first emerged when Japan proposed an intergovernmental "Shangri-La Dialogue Initiative" (SDI) aimed at fostering disaster preparedness, maritime domain awareness, and crisis management.  The SDI could become a vital platform for countries in the region to share information, negotiate disputes, and develop management frameworks for natural resources, shipping lanes, and territorial claims.  It builds on Japanese Prime Minister Shinzo Abe's "three principles for the rule of law" in the South China Sea.  Here's Tetsuo Kotani's breakdown:

In view of rising territorial and maritime tensions in the Asia-Pacific region, Abe called for countries to make and clarify claims based on international law, to avoid using force or coercion in resolving conflicts, and to seek to settle disputes by peaceful means. Putting these three principles of the rule of law into practice is essential for the stability of the Indo-Pacific region.

Sounds nice, but isn't the conflict unresolved in part because international law is ambiguous with respect to territorial and maritime claims?  It seems difficult to imagine China signing on to the SDI.  But here's Kotani again:

The next step is to establish a code of conduct in the maritime and air domains. Similar efforts are being made between the United States and China, and between ASEAN and China. These efforts are designed to manage crises through the application of existing international law (UNCLOS) and international rules (such as COLREGS and CUES). If they prove successful, they will contribute substantially to establishing the rule of law in Asian seas.

So there's some indication that China may be willing to participate, as evidenced by those bilateral peacebuilding efforts with Japan and the United States.  And that leads to the second development that might signal a warming in relations: 

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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

Image: CSIS Asia Maritime Transparency Initiative

Environmental Peacebuilding in the South China Sea

Environmental Peacebuilding in the South China Sea

In recent years the South China Sea has become a fiercely contested region.  China's rise as a regional and global superpower has emboldened an aggressive strategy to claim a larger share of the sea than would otherwise be allowed under the United Nations Convention on the Law of the Sea (UNCLOS).  While UNCLOS permits countries to exercise exclusive economic jurisdiction over a 200 mile extension from shore, China has claimed an ambiguously explained "9-dash line" that seemingly cuts into the maritime jurisdictions of Vietnam, Malaysia, and the Philippines (see map below the jump).  A 2002 agreeement between Association for Southeast Asian Nations (ASEAN) called for self-restraint in the area, but recently all countries have participated in an island development arms race to justify maritime and territorial claims.  China, in particular, has been the most aggressive:

In 2011 Chinese patrol boats harassed Vietnamese and Philippine oil-exploration vessels near the Spratlys. In 2012 China occupied Scarborough Shoal after a stand-off with the Philippines, which also has a claim. Last year a Chinese state-owned company sent an offshore oil rig into waters claimed by Vietnam, leading to violent anti-Chinese protests in Vietnamese cities. The rig withdrew months later. China has responded angrily to a case challenging the basis of its claims in the South China Sea which was filed in 2013 by the Philippines at a UN-backed arbitration panel. It has refused to co-operate with the hearings.

The refusal to acknowledge the jurisdiction of the Permanent Court of Arbitration under the auspices of UNCLOS is problematic for several reasons.  First, because it erodes the legitimacy and persuasiveness of a treaty if a major nation does not participate.  Second, because without a meaningful legal response the international community has less information with which to understand China's concerns and facilitate dispute resolution.  And finally, because uncertainty over the impending decision of the court is escalating island development ahead of the decision, destroying coral reef habitats.  

The South China Sea has now become a conflict of global concern.  Relations between China and its neighbors (including Japan) have deteriorated; much of the island development appears to be militarized; and the integrity of UNCLOS is being undermined.  The United States is deeply involved, with an interest in countering China's rising maritime influence by pivoting toward warmer relations with Japan, Vietnam, and the Philippines (although the US position that China's 9-dash line is invalid is somewhat undermined by the fact that the US is not a ratified party to UNCLOS).  

Less attention has been paid to the South China Sea environment itself.  In order to stake territorial claims (and the 200 mile exclusive economic zones that may go with them), countries are "reclaiming" shallow coral reef areas by dredging the seafloor in order to build artificial islands.  Shipping channels are cut and infrastructure is built over the reef.  One recently discovered artificial island has grown to accommodate an 82,000 square yard facility.  The land reclamation race only adds to the already fragile condition most reefs in the area find themselves in.  And given that legal jurisdiction is in dispute in the region, it probably goes without saying that fish stocks are plummeting due to overfishing.  Indonesia has resorted to sinking illegal fishing vessels, a move that has been criticized for antagonizing neighbors.  

But while many see the environment as a casualty of the South China Sea dispute, it also represents an opportunity for reconciliation.  

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