UNCLOS Part XII and Protecting the Marine Environment in the South China Sea
Mary Fides A. Quintos
CIRSS Commentaries Vol. II (18), June 2015
The Global International Waters Assessment by the United Nations Environment Programme in 2005 identified the South China Sea as a large marine ecosystem with more than 2,500 species of marine fishes and 500 species of reef-building corals. The study also found enormously diverse platform reefs and atolls existing, most notably in the Spratly Islands, which play a key role in the nourishment of regional biodiversity.
Given the importance of the South China Sea as a highly resource-rich area, marine scientists have expressed overwhelming concern about the impact on the marine environment of the ongoing dredging activities in the South China Sea for the construction of artificial islands. The former Director of Vietnam’s Institute for Strategy and Science Dr. Le Van Cuong stated that the daily dumping of landfill with sand dug from nearby reefs “upsets the marine ecology of the region, completely destroying the formed coral reefs aging hundreds of millions of years”. The chief scientist of the National Geographic Pristine Seas Program, Alan Friedlander, also reinforced this statement by saying that “the dredging and building on coral reefs in the South China Sea is causing irreparable damage to one of the most diverse ecosystems on earth.” He added that dredging kills reefs, and without reefs, fishes would disappear.
Protection and preservation of the marine environment: a general obligation under international law
The South China Sea is a semi-enclosed sea that is connected to other bodies of water such as the Yellow Sea, East China Sea, Sulu-Sulawesi Sea, Indonesian Sea, Gulf of Thailand, Gulf of Tonkin, Lingayen Gulf and Manila Bay. The holistic nature of the ocean implies that any activity in one area has interrelated impact in other areas and this has been recognized by international law. Part XII of the United Nations Convention on the Law of the Sea (UNCLOS) provides the general obligation of states to protect and preserve the marine environment. This Part also explicitly stated that all activities in the sea should be conducted with due regard not to cause damage to other states and their environment. Moreover, it is also an obligation under Art. 123 of UNCLOS that states bordering an enclosed or semi-enclosed sea should coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment.
The MOX Plant case and Land Reclamation case are both concerned with interpretation and application of UNCLOS Part XII. In the MOX Plant case, Ireland argued that the United Kingdom failed to take the necessary measures to prevent, reduce and control pollution in the marine environment of the Irish Sea from intended discharges and radioactive wastes from the MOX Plant. The Irish Sea is a semi-enclosed sea separating Ireland from the UK, and it has great importance for fishing and other economic activities for both states. The Tribunal ruled that the two parties shall exchange further information with regard to possible consequences for the Irish Sea arising out of the commissioning of the MOX plant; monitor risks or the effects of the operation of the MOX plant for the Irish Sea; and devise, as appropriate, measures to prevent pollution of the marine environment which might result from the operation of the MOX plant.
In the Land Reclamation case, Malaysia complained that the reclamation works conducted by Singapore was causing pollution and other significant effects to the marine environment including excessive sedimentation, bed level changes and coastal erosion in and around the Straits of Johor that separates Singapore and Malaysia. The Tribunal ruled that both countries should exchange, on a regular basis, information on the risks and effects of Singapore’s land reclamation works, and that Singapore should not conduct its land reclamation in ways that might cause irreparable or serious harm to the marine environment.
The language in UNCLOS Part XII “not to cause damage to areas within and beyond a state’s jurisdiction and control” implies that this is an overarching obligation which has no geographic boundaries. As shown in the MOX Plant and Land Reclamation cases, a state’s obligation to protect and preserve the marine environment should apply regardless of location and in all circumstances where irreversible environmental damage is possible. The ruling of the Tribunal in both of these cases also reinforced the need to cooperate with other states with regard to activities that may impact on the marine environment. The obligation to act with prudence and caution and take preventive measures to ensure that the conduct of activities and exercise of rights in the use of the oceans do not adversely impact the marine environment certainly requires self-restraint. In the case of the South China Sea, however, regardless of who has the right to construct artificial islands, the massive reclamation activities that are apparently being undertaken at the expense of the marine environment represents an abuse of rights and a failure to fulfil this critical obligation under UNCLOS Part XII.
Environment protection as an indispensable dimension of sustainable development
Protection of the environment is also one of the dimensions of sustainable development. The proposed stand-alone Sustainable Development Goal to ”Conserve and sustainably use the oceans, seas and marine resources for sustainable development” is one of the goals that are being considered in the on-going intergovernmental negotiations on the post-2015 development agenda that will build on the Millennium Development Goal. This further highlighted the role of healthy marine ecosystems in economic growth and social development, which gives renewed emphasis to the relevance of the full implementation of international law, as reflected in UNCLOS, as the legal framework that should guide all activities in the oceans and seas.
The destruction of reefs as a consequence of the construction of artificial islands runs counter to the idea of a healthy and productive ocean that is important for the marine economy of many coastal states surrounding the South China Sea, a concern that has been raised by marine scientists. In 2012, the Food and Agriculture Organization of the United Nations identified countries in Northeast Asia and Southeast Asia as among the largest producers of captured fish in the world for export production and domestic consumption, hence, making a significant contribution to the livelihood of millions of people. The irreversible damage caused by massive land reclamation in the South China Sea to reefs that provide protection to many different species of fish will certainly have an impact that might not be limited to the fishing industry.
The performance of obligations under UNCLOS Part XII puts to the core the issue of sustainable development. The marine environment is a shared resource that should not be taken for granted, nor should it be subject to abuse. Part XII and Art. 123 underscored that UNCLOS provides not just individual rights of states, but, more importantly, their collective obligation especially with regard to the marine environment. This obligation should prompt states to think about the larger consequences of their actions. The vastness of the ocean gives the impression that it is an infinite resource, but sending local fishermen further offshore because inland resources were not used sustainably should be a lesson from the past. The basic tenet of honoring international obligations particularly UNCLOS Part XII is for these resources to be enjoyed by future generations.
*Mary Fides A. Quintos is a Foreign Affairs Research Specialist with the Center for International Relations and Strategic Studies of the Foreign Service Institute. She is currently a Fellow at the United Nations Division on Ocean Affairs and Law of the Sea. Ms. Quintos can be reached at email@example.com.
The views expressed in this publication are of the authors alone and do not reflect the official position of the Foreign Service Institute, the Department of Foreign Affairs, the Government of the Philippines, or the United Nations Division of Ocean Affairs and Law of the Sea.
The article was originally published in the CIRSS Commentaries, a regular short publication of the Center for International Relations and Strategic Studies (CIRSS) of the Foreign Service Institute (FSI) of the Philippines.