Volume 29
Issue 4
Summer '17

The South China Sea Award: A Milestone for International Environmental Law, the Duty of Due Diligence and the Litigation of Maritime Environmental Disputes?

Written By: Stephen Fietta, Jiries Saadeh and Laura Rees-Evans

Abstract

In 2013, the Philippines initiated arbitration proceedings against China under Part XV of the United Nations Convention on the Law of the Sea (“UNCLOS”). The arbitration sought to determine “the legal basis of maritime rights and entitlements in the South China Sea, the status of certain geographic features in the South China Sea, and the lawfulness of certain actions taken by China in the South China Sea.”

The Tribunal issued its final award (“Award”) on July 12, 2016. The Award is a milestone in international environmental law as it relates to the law of the sea. This Article examines the Award’s findings with respect to China’s large-scale construction of artificial islands in the South China Sea, alleged State-sponsored fishing activities by Chinese-flagged vessels, and the harvesting of endangered species by Chinese vessels and fishermen. The Article discusses the legal and evidentiary standards adopted by the arbitral tribunal, States’ positive duties of due diligence and vigilance with respect to the marine environment, and potential future implications for marine environmental and conservation disputes.

All told, the implications of the Award for the justiciability of international environmental disputes are significant. In light of the Award’s conclusions as to the nature and scope of the environmental obligations under UNCLOS, it is arguable that any State party to UNCLOS has standing to bring an environmental complaint against any other State party with respect to the conduct of its nationals or flagged vessels in any maritime area. This might be especially important where the conduct concerned threatens severe damage to the marine environment or conservation, including with respect to endangered species or fragile ecosystems.

Regardless of whether the implications of the Award will extend so far, the Award will provide a seminal precedent both in the litigation of international environmental disputes and in relation to the nature and scope of States’ “due diligence” obligations, both under UNCLOS and more broadly.

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