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The Collateral Damage from China's 'Great Wall of Sand': The The Collateral Damage from China’s ‘Great Wall of Sand’: The Environmental Dimensions of the South China Sea Case Tim Stephens* I. Introduction The South China Sea is beset by so many complex and overlapping disputes that it has appeared, at times, to be a domain entirely beyond the purview of international law.1 This account of the region, as one governed by power politics and not law, has suited China and provided cover for its claims and activities, including its island- building on ecologically sensitive reefs. The proceedings brought against China by the Philippines under the 1982 United Nations Convention on the Law of the Sea2 has fundamentally changed this perception, opening to scrutiny many factual and legal aspects of the dispute. The lengthy awards on jurisdiction and the merits published by the Arbitral Tribunal established under UNCLOS bind only the two parties,3 but they are likely to have a far broader impact given their normative authority.4 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. Indeed, in a pre-decision Agora in the American Journal of International Law there was no discussion of environmental * Professor of International Law and ARC Future Fellow, University of Sydney Law School, Australia. The ‘Great Wall of Sand’ is the description given to China’s land reclamation activities by US Admiral Harry B Harris: Harry B Harris (Speech delivered at the Australian Strategic Policy Institute, Australian War Memorial, Canberra, 31 March 2015) <http://www.cpf.navy.mil/leaders/harry-harris/speeches/2015/03/ASPI- Australia.pdf>. 1 See Keyuan Zou, ‘The South China Sea’ in Donald R Rothwell et al (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press, 2015) 626, 629. Professor Zou identifies three layers of the South China Sea dispute: territorial contests, maritime boundary disputes, and controversies over uses and activities. 2 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) (‘UNCLOS’). 3 South China Sea Arbitration (Philippines v China) (Award on Jurisdiction and Admissibility) (UNCLOS Arbitral Tribunal, Case No 2013-19, 29 October 2015) (‘Jurisdiction Award’); South China Sea Arbitration (Philippines v China) (Award) (UNCLOS Arbitral Tribunal, Case No 2013-19, 12 July 2016) (‘Merits Award’) (together the ‘South China Sea Case’). 4 Bernard H Oxman, ‘The South China Sea Arbitration Award’ (Research Paper No 16- 41, University of Miami, 29 August 2016) 19 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2835534>. 41 42 Australian Year Book of International Law Vol 34 issues, and fisheries questions received only a passing mention.5 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.6 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.7 The Arbitral Tribunal’s Merits Award clearly recognises this, and addresses environmental protection and living resource questions in great length and detail. II. The Philippines’ Environmental Claims The Philippines sought rulings on fifteen submissions and in the Tribunal’s decision on the merits these were divided into five groups,8 with each the subject of a discrete chapter. It is predominantly in Chapter VII of the Merits Award that the Tribunal addresses environmental and fisheries concerns. However, several of the Philippines’ other submissions also raised fisheries and marine environmental protection questions. In relation to China’s so-called ‘nine-dash line’, the Tribunal found that China had at most claimed historic rights to fish and to exploit petroleum resources, but not historic title generally.9 However, UNCLOS superseded any such historic rights to living and non-living resources beyond the limits of China’s maritime zones under UNCLOS.10 In any event, the Tribunal found no evidence that China had historically regulated or controlled fishing or seabed mining in the South China Sea beyond its territorial sea.11 Therefore, when China joined UNCLOS in 1996 it simply relinquished the high seas freedoms it previously exercised in areas that now fall within the exclusive economic zones (EEZs) of other States.12 Environmental issues were prominent not only in relation to the damaging consequences of China’s island-building activities,13 but also in the Tribunal’s 5 Zhiguo Gao and Bing Bing Jia, ‘The Nine-Dash Line in the South China Sea: History, Status and Implications’ (2013) 107 American Journal of International Law 98, 99; Florian Dupuy and Pierre-Marie Dupuy, ‘A Legal Analysis of China’s Historic Right Claim in the South China Sea’ (2013) 107 American Journal of International Law 124, 138; Robert Beckman, ‘The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea’ (2013) 107 American Journal of International Law 142, 158–60. 6 Merits Award (UNCLOS Arbitral Tribunal, Case No 2013-19, 12 July 2016) [823]; Elizabeth M P Madin, ‘Land Reclamation: Halt Reef Destruction in South China Sea’ (2015) 524 Nature 291. It was noted that the reefs are among the most biologically diverse on earth. 7 Clive Schofield, Rashid Sumalia and William Cheung, Fishing, Not Oil, is at the Heart of the South China Sea Dispute (15 August 2016) The Conversation <https://theconversation.com/fishing-not-oil-is-at-the-heart-of-the-south-china-sea- dispute-63580>. 8 Merits Award (UNCLOS Arbitral Tribunal, Case No 2013-19, 12 July 2016) [112]. 9 Ibid [228]–[229]. 10 Ibid [247], [261]–[263]. 11 Ibid [270]. 12 Ibid [271]. 13 See below Part V(b). .
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