One major issue raised by the Philippine government panel before the Permanent Court of Arbitration arbitral tribunal on the South China Sea/West Philippine Sea dispute was China’s failure to live up to its obligations to conserve and protect the marine environment under the United Nations Convention on the Law of the Sea. It was a master stroke that the Philippines, among others, hired Philippe Sands, a Bristish lawyer from London, to advocate for us in this issue. Philippe, whom I have met several times, is one of the world’s top environmental lawyers. He is also fond of the Philippines, being a friend among others of the late Justice Florentino Feliciano whom he considered as responsible for laying down a pro-environment jurisprudence in the World Trade Organization when the latter was a member of its Appellate Body.
As noted by the tribunal: “The South China Sea includes highly productive fisheries and extensive coral reef ecosystems, which are among the most biodiverse in the world. The marine environment around Scarborough Shoal and the Spratly Islands has an extremely high level of biodiversity of species, including fishes, corals, echinoderms, mangroves, seagrasses, giant clams, and marine turtles, some of which are recognized as vulnerable or endangered. . . While coral reefs are amongst the most biodiverse and socioeconomically important ecosystems, they are also fragile and degrade under human pressures. Threats to coral reefs include overfishing, destructive fishing, pollution, human habitation, and construction.”
In this regard, the Philippines alleged that China failed to protect the marine environment due to harmful fishing practices and harmful construction activities. The Philippine panel during hearing adduced evidence showing these Chinese fishing vessels engaged in destructive practices by harvesting corals, endangered “sharks, eels, turtles and corals, giant clams, among others. Some were caught carrying cyanide, blasting caps, detonating cord, and dynamite.”
The Philippines expressed its concerns to Asean Member States on 21 May 2012 and sent a Note Verbale to the Chinese Embassy in Manila. But in its dismissive response, China urged the Philippines to withdraw all Philippine ships immediately, and once again urged that the Philippines “immediately pull out” all remaining ships and “desist from disturbing the operation of Chinese fishing boats and law enforcement activities by China’s public service ships.”
The second aspect of the Philippines’ environmental submissions relates to Chinese construction activities on seven features in the Spratly Islands. Typically starting with basic aluminum, wooden, or fiberglass structures supported by steel bars with cement bases, over time, China installed more sophisticated structures, including concrete multi-storey buildings, wharves, helipads, and weather and communications instruments. According to the Tribunal’s experts, construction and dredging activities can impact reef systems in three ways: (a) direct destruction of reef habitat through burial under sand, gravel and rubble; (b) indirect impacts on benthic organisms such as corals and seagrasses via altered hydrodynamics, increased sedimentation, turbidity, and nutrient enrichment; and (c) indirect impacts on organisms in the water column, such as fishes and larvae, from sediments, chemical and nutrient release, and noise. As was typical, China only ignored the Philippines’ protests. China maintains that its island-building project “had gone through science-based evaluation and assessment with equal importance given to construction and protection” and that it had taken “full account of issues of ecological preservation and fishery protection” and “followed strict environmental protection standards.”
By way of conclusion, the Tribunal found that China has, through its toleration and protection of, and failure to prevent Chinese fishing vessels engaging in harmful harvesting activities of endangered species at Scarborough Shoal, Second Thomas Shoal and other features in the Spratly Islands, breached Articles 192 and 194(5) of the Convention.
Among others, the Philippines charged China with failing to prevent its fishermen to fish within the Philippines’ exclusive economic zone at Second Thomas Shoal or Mischief Reef, an issue that China did not address. In its contemporaneous statements, China merely insisted that the Philippines did not exercise jurisdiction over Second Thomas Shoal or Mischief Reef. On these marine features, The Tribunal has held that Mischief Reef and Second Thomas Shoal are low-tide elevations located within areas where only the Philippines possesses possible entitlements to maritime zones under the Convention. These areas can only constitute the exclusive economic zone of the Philippines.
As such, according to the tribunal, Chinese nationals are bound to comply with the licensing and other access procedures of the Philippines within any area forming part of the exclusive economic zone of the Philippines. With respect to the illegal fishing activities by Chinese fishermen, the tribunal noted that China’s de facto control over the waters surrounding both features effectively limits the information available to the Philippines and to the tribunal. Despite these limitations the Tribunal gave credence to the accounts by the Philippines armed forces that Chinese fishing vessels, accompanied by the ships of CMS, were engaged in fishing at both Mischief Reef and Second Thomas Shoal in May 2013. That Chinese fishing vessels have been closely escorted by government CMS vessels makes these actions of official acts of China and are all attributable to China as such.
Regarding the Scarborough shoal, the tribunal subscribe to the submission that the surrounding waters have continued to serve as traditional fishing grounds for fishermen, including those from the Philippines, Viet Nam, and China (including from Taiwan). Records show that the atoll was a traditional fishing ground for exotic fishes such“[b]onito, talakitok, tanguige and other species of fish found beneath or near rocks.” Beginning in April 2012, the Philippine Coast guard reported increased presence of Chinese vessels in the area. While Chinese vessels were physically blockading the entrance to Scarborough Shoal, and driving away Filipino fishermen with water cannon, Chinese fishing vessels have continued to fish at Scarborough Shoal.
Finally, China’s island-building activities also violate specific provisions of the Convention, the tribunal added. The final column of this series on the arbitral decision on the South China/West Philippine Sea dispute will be discussed in the next and final article.