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