The SCS Arbitration & the Marine Environment. Robert Beckman Centre for International Law National University of Singapore

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Preservation of the Marine Environment The SCS Arbitration & the

1 2017 SOUTH CHINA SEA WORKSHOP SCS Arbitration and Incidental Maritime Issues June 2017, Da Nang, Viet Nam Session 1. Preservation of the Marine Environment The SCS Arbitration & the Marine Environment Robert Beckman Centre for International Law National University of Singapore

2 Outline of Presentation 1. The Philippines Claims and the Awards of the Tribunal on the Marine Environment 2. General Obligations to Protect and Preserve the Marine Environment (PPME) 3. China s Construction Activities and the Obligation to Monitor and Assess 4. China s Construction Activities and the Obligation to Cooperate 5. Conclusions 2

3 Part 1 The Philippines Claims and the Awards of the Tribunal on the Marine Environment 3

4 Philippines Allegations on Marine Environment Philippines alleged that China engaged in two types of activities in a manner that breached its obligations under UNCLOS to protect and preserve the marine environment (PPME) : 1. Harmful fishing practices 2. Harmful construction activities on occupied features 4

5 Philippines Claim in Memorial of March 2014 on PPME 1. Submission 11. Harmful fishing practices by Chinese vessels at Scarborough Shoal & Second Thomas Shoal, with toleration and active support of China, violated obligations under UNCLOS to PPME 2. Submission 12. China s occupation and construction activities on Mischief Reef violated its obligations under UNCLOS to PPME 5

6 Philippines Amended Claim - Construction Activities in 2014 & 2015 Submission 11 amended - China violated its obligations to PPME at Scarborough Shoal and at the 7 other features it occupies in the Spratly Islands Philippines alleged that China breached Articles 123, 192, 194, 197, 205 and 206 of UNCLOS 6

7 Award on Jurisdiction Tribunal found existence of a dispute on the interpretation or application of Articles 192 and 194 Not a dispute concerning territorial sovereignty or maritime delimitation General obligations in Part XII apply irrespective of where the acts took place Further, Article 297(1)(c) expressly provides that the compulsory dispute settlement procedures are available for alleged violations of the rules and standards for the protection and preservation of the marine environment 7

8 Award on Jurisdiction & Merits on Issue of Military Activities Tribunal deferred its decision on Submission 12 until its consideration of the merits Deferred because there was an issue of whether the lawfulness of China s construction activities was excluded from the jurisdiction of the Tribunal because of China s Declaration under Article 298 excluding disputes on military activities In its Award on the Merits the Tribunal ruled that the construction activities were not military activities because China had consistently and officially stated that its construction activities were civilian in character 8

9 Award on Merits Fishing Practices FINDS: 1. that fishermen from Chinese flagged vessels have engaged in the harvesting of endangered species on a significant scale; 2. that fishermen from Chinese flagged vessels have engaged in the harvesting of giant clams in a manner that is severely destructive of the coral reef ecosystem; and 3. that China was aware of, tolerated, protected, and failed to prevent the afore- mentioned harmful activities; and DECLARES that China has breached its obligations under Articles 192 and 194(5) of the Convention; 9

10 Award on Merits Construction Activities FINDS : 1. that China s land reclamation and construction of artificial islands, installations, and structures at the reefs it occupies has caused severe, irreparable harm to the coral reef ecosystem; 2. that China has not cooperated or coordinated with the other States bordering the South China Sea concerning the protection and preservation of the marine environment concerning such activities; and 3. that China has failed to communicate an assessment of the potential effects of such activities on the marine environment, within the meaning of Article 206 of the Convention; DECLARES that China has breached its obligations under Articles 123, 192, 194(1), 194(5), 197, and 206 of the Convention; that China s land reclamation and construction of artificial 10

11 Part 2 General Obligations to Protect and Preserve the Marine Environment (PPME) 11

12 Articles 192 and 194 General Obligations Obligations in Part XII apply to all States with respect to the marine environment in all maritime areas, both inside the national jurisdiction of States and beyond it Findings of Tribunal have no bearing on the issue of which State has sovereignty over the features in the South China Sea 12

13 Article 192 General Obligation 1. States have an obligation to [PPME]. 2. Although phrased in general terms, the Tribunal considers it well established that it imposes a duty on States Parties to PPME. 3. The content of that duty is informed by other provisions in Part XII and other applicable rules of international law. 4. Entails the positive obligation to take active measures to protect and preserve the ME and the negative obligation not to degrade the ME 5. Positive duty to prevent, or at least mitigate, significant harm to the environment when pursuing large-scale construction activities 13

14 Article 192 & other provisions 1. Content of the general obligation in Article 192 is further detailed in the subsequent provisions of Part XII, including Article 194, as well as by reference to specific obligations set out in other international agreements, as envisaged by in Article Article 237 provides that obligations of States under special conventions with respect to the PPME should be carried out in a manner consistent with the general principles and objectives of UNCLOS. 14

15 Article 194. Measures to Prevent, Reduce & Control Pollution of ME 1. States shall... take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States or their environment... Obligation in Article 194 is obligation of conduct and of due diligence, as ruled in the Fisheries Advisory Opinion of 2015 of ITLOS, in the Seabed Disputes Chamber Advisory Opinion of 2011, and in the 2010 judgement of the ICJ in the Pulp Mills case Due Diligence requires not only the adoption of measure to prevent pollution, but a certain level of vigilance in their enforcement and the exercise of administrative control 15

16 Article 194(5) fragile ecosystems & endangered species measures shall include those necessary to protect rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species or other forms of marine life As stated in Chagos Arbitration, the phrasing of 194(5) confirms that Part XII is not limited to measures aimed strictly at marine pollution There is no definition of ecosystem in UNCLOS, but there are internationally accepted definitions, as in Article 2 of Convention of Biological Diversity (CBD) Activities in this case involved both rare or fragile ecosystems and threatened or endangered species 16

17 Articles 192 and 194(5) 1. The duty of prevent the harvest of endangered species follows from Article 192, read against the background of other applicable law 2. The general obligation in Article 192 is given particular shape by Article 194(5) in the context of fragile ecosystems 3. Article 192 imposes a due diligence obligation to take those measures necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered special and other forms of marine life Must prevent the direct harvesting of species internationally recognized as being threatened with extinction Must prevent harms that would affect depleted, threatened or endangered species indirectly through destruction of their habitat 17

18 Poaching of Endangered Species by Chinese Fishing Vessels 1. Tribunal found that the harvesting of sea turtles, corals and giant clams on the scale that appears in the record has a harmful impact on the fragile marine environment 2. China was aware that Chinese flag vessels were engaging in these activities, and it had a duty to adopt rules and measures to prevent such acts and maintain a level of vigilance in enforcing those rules and measures 3. Tribunal found no evidence to indicate that China has taken any steps to enforce those rules and measures against fishermen engaged in the poaching of endangered species 4. Evidence indicate that China must have known of, and deliberately tolerated, and protected, the harmful acts 18

19 Tribunals Findings on Harvesting of Endangered Species 1. China has breached in obligations under Articles 192 and 194(5) to take necessary measures to PPME with respect to the harvesting of endangered species from the fragile ecosystems at Scarborough Shoal and Second Thomas Shoal 2. China has also breached its obligation to PPME in respect of its toleration and protection of the harvesting of giant clams across the Spratlys by the propeller chopping method by vessels flying its flag 19

20 Effects of China s Island-building Activities on Marine Environment 1. Tribunal found the China s artificial island-building activities on the seven reefs it occupies in the Spratly Islands have caused devastating and long-lasting damage to the marine environment 2. China s construction activities have breached its obligation under Article 192 to PPME 3. China has conducted dredging in such a way as to pollute the ME with sediment in breach of Article 194(1) 4. China has violated its duty under Article 194(5) to take measures necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life 20

21 Part 4. China s Construction Activities and the Obligation to Monitor and Assess 21

22 Articles 204, 205 & 206 Monitoring And Assessment Article 204 requires State to endeavour as far as practicable to observe, measure, evaluate and analyse risks or effects on ME of activities they permit or engage in Article 205 requires States to publish reports of the results from such monitoring to the competent international organization, which should make them available to all States Article 206 requires States to assess the potential affects of planned activities under their jurisdiction or control which may cause substantial pollution of or significant and harmful changes to the marine environment, and communicate reports of the results of such assessments in the manner provided in Article

23 Article 206 Prior Cases on Planned Activities MOX Plant Case (Ireland v UK) Provisional Measures, ITLOS Case No. 10 (2001) and Land Reclamation Case (Malaysia v Singapore) Provisional Measures, ITLOS Case No. 12 (2003) The duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law Duty to Cooperate arises when planned activities under jurisdiction or control may cause significant harm to marine environment of neighbouring State Duty to assess the potential impact of the activities, including conducting and EIA Duty to Notify and Consult potentially affected States, and to exchange information with them on the potential affect of the planned activities 23

24 Prior Cases and Principle 19 of Rio Principles Prior Cases in reality seem to incorporate Principle 19 of the 1992 Rio Declaration, which reads as follows: Principle 19 States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith. 24

25 Article 206 Environmental Impact Assessment 1. Article 206 ensures that planned activities with potentially damaging effects may be effectively controlled and that other States are kept informed of the potential risks 2. Seabed Disputes Chamber Advisory Opinion of 2011 stated that the obligation to conduct an EIA is a direct obligation under UNCLOS and customary international law 3. While the terms reasonable and as far as practicable in article 206 contain an element of discretion for the State concerned, the obligation to communicate reports of the results of the assessment is absolute 25

26 Tribunal s Finding on Monitoring & Assessment 1. Given the scale and impact of its island-building activities, China could not reasonably have held any belief other than that the construction may cause significant and harmful changes to the ME 2. Accordingly, China was required as far as practicable (1) to prepare an EIA and (2) to communicate reports of the results of such the assessments 3. Tribunal not able to identify any report that would resemble an EIA that meets the requirements of Article

27 Tribunal s Finding on Monitoring and Assessment "In any event, the obligation to communicate is, by the terms of Article 205, to competent international organizations, which should make them available to all States. Although China s representatives have assured the States parties to the Convention that its construction activities followed a high standard of environmental protection, it has delivered no assessment in writing to that forum or any other international body as far as the Tribunal is aware. Tribunal found that China has failed in its duty under Article 206 to communicate reports of the results of its assessments of the potential effects of its activities on the marine environment 27

28 Tribunal s Finding on Monitoring and Assessment 1. The Tribunal could have followed the reasoning of ITLOS in the MOX Plant and Land Reclamation Cases, and ruled that China had a Duty to Cooperate that included an obligation to notify and consult with the Philippines Philippines was a potentially affected State given that China s was planning major construction activities on several disputed features in the EEZ of the Philippines 2. The Tribunal did not do so instead, it relied on the strict language in Articles 205 and 206 and ruled that China failed to communicate the reports of its results of its assessments of the potential effects of its activities on the marine environment 28

29 Part 4. China s Construction Activities and the Obligation to Cooperate 29

30 Articles 197 and 123 and the Obligation to Cooperate Article 197. Cooperation on a Global or Regional Basis requires States to cooperate on a global or regional basis in formulating and elaborating international rules, standards and recommended practices and procedures for the PPME Article 123. Cooperation of States Bordering Enclosed or Semi- Enclosed Seas provides that States bordering a semi-enclosed sea should cooperate with each other and shall endeavour to coordinate the implementation of their rights and duties with respect to the PPME 30

31 Tribunal s Findings on the Obligation to Cooperate With respect to China s island-building programme, the Tribunal has before it no convincing evidence of China attempting to cooperate or coordinate with other States bordering the South China Sea Evaluation: This is weakest finding of Tribunal on PPME Art 123 is not a legal obligation should endeavour, directly or through an appropriate regional organization, to coordinate the implementation of their rights and duties with respect to the PPME Art 197 provides that States shall cooperate in formulating and elaborating rules, practices and procedures 31

32 Part 6. Conclusions 32

33 Conclusions 1. Tribunal in SCS Case has continued to develop the general obligations in UNCLOS regarding the PPME 2. Award in SCS Case has further elaborated how the general obligations in Articles 192 and 194 should be interpreted, especially 194(5) 3. Reasoning of the Tribunal on monitoring and assessment is consistent with prior ITLOS and ICJ decisions on obligation to conduct an EIA 4. Tribunal ruled that China has failed in its duty under Article 206 to communicate reports of the results of its assessments of the potential effects of its activities on the marine environment 5. Tribunal ruled that China had failed to cooperate or coordinate with other States bordering the South China Sea under Articles 197 &

34 Conclusions 1. Tribunal could have ruled that China had a duty to cooperate with potentially affected States with respect to its planned activities, and that it was required to notify and consult with the Philippines as a potentially affected State but the Tribunal failed to address this issue 2. Tribunal s reasoning on the obligation to cooperate under 123 and 197, and on its failure to cooperate and coordinate with other States bordering the South China Sea, is rather weak 34

35 THANK YOU Robert Beckman

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