Author: Tim Stephens
Legal Studies Research Paper No. 17/06, January 2017
Forthcoming in 2017 in Volume 34 of the Australian Year Book of International Law.
This contribution to the Australian Year Book of International Law’s agora on the South China Sea case assesses its treatment of fisheries and environmental issues. These matters might seem only second or third order concerns given the sovereignty and security issues also at stake. However, the South China Sea is one of the world’s most ecologically diverse marine bioregions and sustains an array of coral reef systems and highly productive and valuable fisheries. Contrary to popular perceptions access to these fisheries is more central to the disputes between the littoral states of the region than control over oil and gas resources. The arbitral Tribunal’s merits award clearly recognises this and addresses environmental protection and living resource questions in great length and detail.
Most commentary on the South China Sea case is likely to focus on the decision’s implications for maritime claims and zones in the region. However, the South China Sea case has also made a substantial contribution to the growing body of jurisprudence of the ICJ, ITLOS and arbitral tribunals on sustainable fishing and marine environmental protection. It is striking that in an award of 501 pages that around 150 pages addressed fisheries and environmental protection issues. The Tribunal did not accept that these matters were ‘off limits’ because of the underlying sovereignty disputes in the South China Sea. Instead, the Tribunal confirmed the applicability of Part XII of UNCLOS irrespective of where damaging activities take place, and which state or state possesses title over maritime features or jurisdiction over maritime areas. And the Tribunal has affirmed the important linkages between the environmental protection and fisheries management provisions of UNCLOS, explaining that protecting the marine environment not only entails the control of pollution, but also requires the protection of marine ecosystems, especially those of rarity and fragility. The obvious concluding question to pose is whether the South China Sea case will have any effect in restraining the damaging fishing and island-building activities being undertaken by China and other South China Sea states. There are several ways in which the award may contribute to this outcome. First, by rejecting China’s nine-dash line and legitimating the entitlement of the Philippines (and by implication other states) to an EEZ, the award affirms the right of South China Sea coastal states to manage their fisheries sustainably within defined management boundaries. Second, the award removes the inducement for states to transform small maritime features to expand their maritime claims. As Oxman has observed, the award may lead to a ‘decline in gratuitous environmental disruption occasioned by attempts to artificially enhance such features to reinforce claims to maritime jurisdiction.’ Third, the South China Sea case may be a catalyst for regional cooperation to protect this unique marine environment. It not only environmental protection, fisheries management and ecologically sustainable development provides legal ground rules that could inform environmental safeguards in a binding South China Sea Code of Conduct, but could also conceivably prompt renewed interest in the designation of the Spratly Islands as a demilitarised ‘Marine Peace Park’ where there is cooperative environmental protection, fisheries management and ecologically sustainable development.
Read the full paper at Tim Stephens (2017) [PDF]
About the author: Tim Stephens is a Professor of International Law and ARC Future Fellow, Sydney Law School, University of Sydney.
Marine Environment issues: https://seasresearch.wordpress.com/category/events-and-analyses/marine-environment-issues/