EAGLE EYES – Tony La Viña

9 August 2016, Manila Standard Today

China’s failure on the marine environment

One major issue raised by the Philippine government panel before the
Permanent Court of Arbitration arbitral tribunal on the South China/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
tomes, 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
sands considered as responsible for laying down a pro-environment jurisprudence in the
World Trade Organisation 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 fibreglass 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.

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