The South China Sea arbitration: Environmental obligations under the Law of the Sea Convention

• DOI: http://doi.org/10.1111/reel.12229
• Published date: 01 April 2018
• Author: Yoshifumi Tanaka
• Date: 01 April 2018

CASE NOTE

The South China Sea arbitration: Environmental obligations

under the Law of the Sea Convention

Yoshifumi Tanaka

Correspondence

Email: yoshifumi.tanaka@jur.ku.dk This case note analyses the marine environmental protection issues that arose in

the 2016 South China Sea arbitration. Given that the South China Sea includes

highly productive fisheries and extensive coral reef ecosystems, the alleged breach

of environmental obligations under the United Nations (UN) Convention on the Law

of the Sea was important in this arbitration. The Arbitral Tribunal examined three

obligations concerning marine environmental protection under the UN Convention

on the Law of the Sea: the obligation of due diligence; the obligation to conduct an

environmental impact assessment; and the obligation to cooperate. The Tribunal’s

arbitral award contributes to the clarification of the interpretation of relevant provi-

sions concerning marine environmental protection under the Convention. Further-

more, a remarkable feature of the arbitration was that the Tribunal appointed

experts to have an independent opinion with regard to environmental damages aris-

ing from China’s activities in the South China Sea. The use of experts in the South

China Sea arbitration is worth noting, since scientific evidence is of particular

importance in the settlement of international environmental disputes.

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INTRODUCTION

On 22 January 2013, the Republic of the Philippines instituted arbi-

tration proceedings against the People’s Republic of China, in

accordance with Articles 286 and 287 and Article 1 of Annex VII of

the United Nations (UN) Convention on the Law of the Sea (LOSC).

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The Arbitral Tribunal rendered its arbitral award on the merits on 12

July 2016.

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Broadly speaking, the award on the merits dealt with

four principal issues: (i) the source of maritime rights and entitle-

ments in the South China Sea; (ii) the legal status of maritime fea-

tures and their entitlements in the South China Sea; (iii) the

lawfulness of China’s actions in the South China Sea, including the

alleged breaches of environmental obligations under the LOSC; and

(iv) aggravation of the dispute during the arbitral proceedings.

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Among other things, the Arbitral Tribunal held that: ‘China’s claims

to historic rights, or other sovereign rights or jurisdiction, with respect

to the maritime areas of the South China Sea encompassed by the

relevant part of the “nine-dash line”are contrary to the Convention.’

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It further ruled that none of the high-tide features in the Spratly

Islands is capable of sustaining human habitation or an economic life

of their own and that the effect of Article 121(3) is that such features

shall have no exclusive economic zone or continental shelf.

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The deci-

sions of the Tribunal regarding China’s claim to marine spaces encom-

passed by the ‘nine-dash line’and the legal status of maritime features

in the South China Sea directly affect the spatial scope of the high seas

and the Area, which is the common heritage of mankind. In this sense,

one can argue that the South China Sea arbitral award concerns com-

mon interests of the international community as a whole.

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United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered

into force 16 November 1994) 1833 UNTS 3 (LOSC). The Philippines ratified the Conven-

tion on 8 May 1984 and China ratified it on 7 June 1996.

2

South China Sea Arbitration (The Republic of the Philippines v People’s Republic of China)

(Award) Arbitral Tribunal (2016) PCA Case No 2013–19 (South China Sea).

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ibid paras 7–10.

4

ibid para 1203(B)(2).

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ibid para 1203(B)(7).

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D Tamada, ‘In the Matter of an Arbitration before an Arbitral Tribunal Constituted under

Annex VII to the 1982 United Nations Convention on the Law of the Sea between the

Republic of Philippines and the People’s Republic of China, Award on Jurisdiction and

Admissibility (29 October 2015)’(in Japanese) (2016) 66 Kobe Law Journal 155.

DOI: 10.1111/reel.12229

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wileyonlinelibrary.com/journal/reel RECIEL. 2018;27:90–96.