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Introduction

UNCLOS (the United Nations Convention on the Law of the Sea) is the “Bible” for the Law of the Sea. The increasing threat to our marine environment caused by harmful human activities has prompted a focus on legal interpretation. This essay examines how the Tribunal creatively interpreted certain articles in Part XII of the UNCLOS.

The essay first identifies three man-made problems affecting the marine environment in the South China Sea. It then asserts that judicial creativity has significantly influenced interpretation to protect the ocean. From this premise, the essay analyses three legal techniques the Tribunal employed. It further explores the significance of Part XII of UNCLOS. Finally, it concludes that while judicial creativity is necessary for interpreting Part XII of UNCLOS, it is insufficient to change the status quo.

Reflecting on the Tribunal’s Decision in South China Sea Arbitration

Human Activities vs. Negative Marine Impact

In the Philippines’ allegations over China’s marine environmental violations, concerns arise regarding the harmful effects on the overall ecological system. At least three types of negative human conduct have caused detrimental effects: harmful fishing practices, harvesting endangered or threatened species, and the use of cyanide and dynamite. This analysis will discuss these activities.  

Judicial Creativity and UNCLOS

Yoshifumi states, ‘the law of the sea is one of the oldest branches of public international law’.[1] Dynamic interpretation is necessary to address novel problems. Disputes like the above are challenging to resolve with clear-cut legal rules, as Part XII serves as a legal framework. Thus, Vitalius points out that even international courts deal with hard cases where legal solutions are ambiguous, permitting the use of judicial creativity.‘ [2] We can also establish the link between judicial creativity and discretionary power, where the judge may reasonably use their subjective judgment.

Below, we will elaborate on how the Tribunal’s decision-making influenced the interpretation of the provisions in Part XII with judicial creativity according to the purpose of the UNCLOS.

Judicial Creativity 1 Attaching substantial specifications and Art 192 & 194(5) of the UNCLOS

Various reports and photographic evidence indicate that Chinese fishing vessels have been involved in harmful fishing practices at several features since 1998. It not only pollutes the ocean beyond the immediate area but also destroys the high level of biodiversity of species. The Tribunal considers that China has breached Art 192 and Art 194(5) of UNCLOS.

Regarding the judgment over harmful fishing practices, the Tribunal boldly attaches more substantive meanings. In particular, the Tribunal believes that ‘the obligation to protect and preserve the marine environment’ in Art 192 shall contain ‘due diligence’.

Due Diligence

Due diligence is an ancient phrase that extends its reach into the modern legal context. Similar to its synonym ‘ordinary care’, due diligence denotes ‘the care that a reasonable person exercises to avoid harm to other persons or their property’. [3] In customary international law, due diligence is linked to the standard of conduct to uphold the principle of neighborliness,[4] binding States to reach a compromise in a dispute of interests. [5] Both due diligence and the principle of neighborliness are echoed in Art 193 of Part XII of UNCLOS, which declares that States shall maintain a balance between exploiting natural resources and protecting the marine environment. [6] This is also how the Tribunal views China’s case concerning harmful activities.

Due diligence contains an expectation of the foreseeability of risk,[7] meaning the risk may be anticipated. [8] When States perform certain tasks, such as fishing, they are expected to predict certain risks to avoid harming the marine environment. The Ferse Report identifies that the risk of Chinese harmful harvesting includes destroying the ‘structural complexity of reef fish community’. [9] In the context of ecology, structural complexity, particularly coral reefs, often refer to their capability to harbor a high degree of species richness. [10]

Elements of Due Diligence

Although defining the vague standard of ‘due diligence’ is challenging,[11] the Tribunal elucidates two elements of ‘due diligence’ related to ‘protect’ and ‘preserve’ in Art 192:

  • The obligation of State parties includes ‘the protection from future damage and the preservation by maintaining or improving present condition’. [12]
  • The ‘positive’ obligation suggests taking active measures to protect and preserve, while the ‘negative’ one assumes not to degrade the marine environment. [13]
First Element

The first element, in line with the ‘precautionary principle’, [14] echoes the ICJ’s case law that emphasizes alertness and prevention as essential to protect our environment. [15] The dictionary defines precautionary as ‘a measure taken beforehand to prevent harm or secure good.’ [16] The precautionary approach is incorporated in principle 15 of the Rio Declaration as follows:

‘To protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. ‘ [17]

In other words, the precautionary principle underlines every due diligence according to the Tribunal.

Second Element

The second element of due diligence is the action plan. China has passed a Law of the Protection of Wildlife in 1989 to forbid the harvesting and killing of protected species, including sea turtles and clams. But from the perspective of the Tribunal, enacting relevant laws and principles to prohibit destructive conduct only satisfies the first element of due diligence under Art 192. The due diligence implied in the obligation shall cover the enforcement of the relevant legislation. However, this is absent in China’s practice. Contrarily, armed government vessels escort Chinese fishing boats to continue the harmful fishing practice.

The Tribunal doesn’t merely see the provisions as ‘punitive’. It distinguishes the word ‘’obligation’’ from ‘’responsibility’’. The former, like the ‘duty’, suggests a promise or a commitment towards the future, while the latter, refers to the ‘liability’ that States may owe due to another party’s loss.

It’s worth noting that in the South China Sea Arbitration, the Tribunal frequently invokes due diligence as an implied obligation. The reason why the Tribunal carefully incorporates due diligence into the interpretation of Art 192 and Art 194(5) is largely associated with the benefits of the perspective of prevention. As Yoshifumi stresses, State responsibility is often established after the damage occurrs; in other words, if there is no damage, discussing responsibility makes no sense. But because the harm to the environment is unrepairable, focusing solely on responsibility may have limited effect in protecting the environment. [18] When a State constitutes the breach and the liability occurrs, the actual loss is beyond the economic scope, as it’s all about the marine environment that cannot be restored in one or two generations.

Judicial Creativity 2 Referencing and incorporating other applicable laws and Art 194(5) of the UNCLOS

Art 193 states that States ‘have the sovereign right to exploit their natural resources’, [19] which may include harvesting certain marine species within a State’s territory. However, preserving the living resources is a component of protecting the marine environment, [20] because harvesting tons of vulnerable, threatened, and endangered species, such as corals, marine turtles, sharks, and clams, can cause permanent damage to the reef. For example, giant clams, which grow very slowly, eventually become rare on the reefs and can only be collected with destructive methods.

Endangered Species

It is vital to distinguish endangered species from other natural resources according to Art 194(5). In identifying China’s dangerous harvesting practices, the Tribunal finds that UNCLOS lacks a definition of ‘endangered species’. For instance, determining whether sea turtles are species under threat requires a legal reference.

The Tribunal references the appendixes of CITES to identify coral species, [21] exemplifying how it uses ‘systematic interpretation’ under Art 31(3)(c) of VCLT.  Systematic interpretation is a general rule of treaty interpretation that relevant provisions of applicable international law must be interpreted together in the context. [22]

Three Elements for Environmental Protection

UNCLOS, as a comprehensive legal framework established at the global level, consists of three elements dedicated to environmental protection; [23] ’uniformity of rules’ or ’rules of reference’ means that the law with the same effect can be incorporated into the UNCLOS to maintain global concordance. [24] As the global community upholds CITES as part of international law, [25] the Tribunal considers it reasonable to incorporate it into the provision of Art 194(5) for interpretation.

Furthermore, the constantly changing appendixes lists will update UNCLOS accordingly due to the ‘special character’ of Part XII, which remains a legal framework. A framework agreement can be seen as an incomplete treaty but with more details embedded than a declaration, and it aims to create reconciliation between parties for future fulfillment.[26]

However, such flexible interpretation may have negative effects. First, States signed these treaties because of the ‘stability’ fixed by written words, but the Tribunal’s decision could be seen as ‘uncertainty’ due to its basis on ever-changing standards, making it difficult to establish as ‘legal precedent’. Usually, legal precedents develop from a legal case to form a legal principle, and future decision-makers might seek similar ‘stability’.

Judicial Creativity 3 ‘Read down’ the provision in the context and Art 194(5) of the UNCLOS

In recent decades, China’s fishing vessels have employed dynamite and cyanide, including blasting caps, detonating cords, plastic explosives, etc. In addition to jeopardizing living and endangered resources, these methods can decompose the rare or fragile ecosystem on an unprecedented scale.

The Tribunal declares that China has breached Art 192, 194(2), and 194(5) by using such ‘highly destructive methods’ as noted in the Ferse Report. [27]

The Convention includes only two general provisions to regulate the risk of ecological problems: Art 194(5) and Art 196(1).[28] The Tribunal considers ‘the use of both dynamite and cyanide to be pollution of the marine environment within the meaning of the Convention’,[29] according to the definition in Art 1 of UNCLOS that ‘pollution…as the introduction by man, directly or indirectly, of substances or energy into the marine environment…’. [30] The Tribunal believes these are all substances, which include a meaning touching on ‘chemical constitution’. [31]

Ferse Report

However, the Ferse Report initially holds that cyanide and blast fishing are ‘highly destructive methods.[32] The term “method” is defined as a ‘systematic procedure, technique, or mode of inquiry employed by or proper to a particular discipline or art’. [33] This is much closer to ‘technology’, but the Tribunal explained that it is because explosive shatter coral and cyanide may kill or injure non-target species.[34] Besides, both dynamite and cyanide can ‘reduce biodiversity by killing fish and destroying their habitat’. [35]

Compared with land, the ocean is much easier to pollute due to currents, shipping movement, trade, natural currents, and winds, as well as pollution caused by ecological reasons. [36]

When assessing these ‘highly destructive methods’ as ‘pollution’, the Tribunal highlights the disastrous consequences of such ‘methods’, rather than the ‘methods’ themselves. The Tribunal did not establish a causal link between the destructive methods and the pollution but directly declared that this is ‘pollution’. Saying that ‘cyanide causes pollution’ differs from saying ‘cyanide is the pollution’. If the ’method’(cyanide) is the cause, there might be multiple concurrent causes leading to the ‘pollution’, making using ‘cyanide’ less liable.

Although neither dynamite nor pollution is mentioned in the provisions, the Tribunal adopts the ‘reading down’ technique to limit the potential harmful extent. It again imposes the strongest precautionary obligations on the State parties and covers a much larger area affected by the unexpected pollution caused by ocean currents, thereby protecting and preserving the marine environment to the utmost extent.

Influence on the Interpretation of the UNCLOS

Overall, the Tribunal’s decision will not influence the interpretation of Part XII of UNCLOS more than the three principal schools of treaty interpretation: the textual approach, the subjective approach, and the teleological approach. [37]

In the South China Sea Arbitration decision-making process, the Tribunal heavily relied on teleological interpretation, which conforms to the purpose of the legislation. The Tribunal also employed the textual approach, consistent with linguists’ methods. This blending aligns with the spirit of Art 31(1) of the Vienna Convention on the Law of Treaties (VCLT),[38] as the Vienna Convention adopts both the textual approach and the teleological approach to discover the actual meaning.[39]

Departing from ‘ordinary meaning’ to interpret Part XII may jeopardize the ‘legal certainty’, and courts usually struggle to balance consistency with precedent and freedom from constraints.[40] 

The ‘ambiguity’ of the provisions under Part XII of the UNCLOS allows the Tribunal to interpret with ‘judicial creativity’ in a ‘practical skeptical’ way.[41] For example, Art 192 is a very general provision. Many definitions and obligations are implied rather than expressed. Such ambiguity, as discussed by Vitalius, could result from multiple parties achieving a consensus to limit possible damage during negotiation, allowing flexible interpretation. [42]

In the South China Sea arbitration, the Tribunal’s ‘precautionary approach’ would naturally maximize relevant obligations to minimize possible damage. This approach, as argued by Sir Gerald Fitzmaurice, should be a ‘last resort’ for judges, exercised with common sense, particularly in ‘good faith and with intelligence ‘.[43]

In summary, while the ambiguity of the provisions under Part XII of UNCLOS gives certain flexibility for interpretation, the Tribunal still adheres to the precautionary principle to limit the broader extent as well as to impose necessary duty invoked by due diligence.

Implications

Based on the above discussion, at least two implications can be uncovered.

First, the Tribunal’s interpretation of ‘hidden duty’ vastly expands this treaty’s capacity. From the Tribunal’s perspective, the written provisions are merely the ‘tip of the iceberg’. The Tribunal revealed the ‘hidden duty’ bit by bit to uncover the law’s intention, as treaty terms may reflect compromises between States, but some contents might fail to reach consensus.[44] ‘Hidden duty’, the ‘failed consensus’, potentially transforms Part XII of UNCLOS into a more comprehensive convention.

Second, judicial protection aims to protect the global environmental commons by triggering other rules of law. [45] When interpreting the treaty, two doctrines clash: ‘’effectiveness’’ and ‘’restrictive interpretation’’. [46] While the former tends to maximize the effect based on the text, the latter focuses on reading the treaty obligation restrictively ‘in favour of sovereignty’, meaning ‘treaty obligations must be construed in a way to impose no obligation or the lesser obligation’.[47] This reflects the fundamental conflict between the global community and sovereignty. The Tribunal clearly adopts the view that the doctrine of ‘effectiveness’ should prevail over the doctrine of ‘restrictive interpretation’, aiming to promote the Convention’s purpose.

Conclusion

The Tribunal’s decisions on South China Sea Arbitration exemplify how judicial creativity can influence treaty interpretation in the realm of the law of the sea. Judicial creativity can unfold in several ways under the principles of the ‘precautionary approach’. First, borrowing ancient legal concepts to expose and impose hidden obligation. Second, merging other pertinent laws to flesh out the legal framework. Third, detecting the fundamental prejudice of human conduct that threatens the ocean.

While the influence on the interpretation has not gone beyond the scope of treaty interpretation, the implications derived from within are profound. These can be summarized in two aspects:  growing the potential of Part XII as an organic instrument and revealing the hidden duty.     

The remaining problem is how to hold the abuser accountable through State responsibility. Without enforcement, judicial creativity may only shape Part XII of UNCLOS into environmental advocacy rather than a binding treaty.

(END)                                                                                                                                                                                                                              

Footnote
Part 1

[1] Yoshifumi Tanaka, The International Law of the Sea (Cambridge University Press, 3rd ed, 2019) 3.

[2] Vitalius Tumonis, ‘Judicial Creativity and Constraint of Legal Rules: Dueling Cannons of International Law’ (2012) 20(1) University of Miami International and Comparative Law Review 93, 98.

[3] Due diligence, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/due%20diligence#h1 .

[4] Maria Flemme, Due Diligence in International Law, 2004, 12.

[5] “New Perspectives on International Environmental Law”. The Yale Law Journal. 82 (8): 1664. July 1973. doi:10.2307/795366. JSTOR 795366.

[6] United Nations Convention on the Law of the Sea, Art 193.

[7] Maria Flemme, Due Diligence in International Law, 2004, 14.

[8] Foreseeable, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/foreseeability .

[9] South China Sea Arbitration, at para. 955.

[10] Roy Yanovski et al, ‘Structural Complexity in Coral Reefs: Examination of a Novel Evaluation Tool on Different Spatial Scales’, https://www.frontiersin.org/articles/10.3389/fevo.2017.00027/full .

[11] Ibid.

[12] South China Sea Arbitration, at para. 941.

[13] Ibid.

[14] Yoshifumi Tanaka, The International Law of the Sea (Cambridge University Press, 3rd ed, 2019) 342.

[15] ICJ Reports 1997, p. 78, para. 140. See also ILC, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with Commentaries, General Commentary (2001) 2 YILC, Part 2, p. 148, para. 2.

[16] Precaution, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/precautionary .

[17] Rio Declaration on Environment and Development 1992.

Part 2

[18] Yoshifumi Tanaka, The International Law of the Sea (Cambridge University Press, 3rd ed, 2019) 330.

[19] United Nations Convention on the Law of the Sea, Art 193.

[20] Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p. 280, at p. 295, para. 70.

[21] Convention of International Trade in Endangered Species of Wild Fauna and Flora, appendixes.

[22] Vienna Convention on the Law of Treaties, art 31(3)(c).

[23] Yoshifumi Tanaka, The International Law of the Sea (Cambridge University Press, 3rd ed, 2019) 332.

[24] Ibid, p333, para.4.2.

[25] South China Sea Arbitration, at para. 956.

Part 3

[26] George J. Mitchell, quoted in Elliott Abrams, “Three mistakes the U.S. must not make in the Israeli-Palestinian peace talks, Washington Post (September 4, 2010).

[27] South China Sea Arbitration, at para. 970.

[28] Yoshifumi Tanaka, The International Law of the Sea (Cambridge University Press, 3rd ed, 2019) 409.

[29] Ibid.

[30] United Nations Convention on the Law of the Sea, art 1.

[31] Substance, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/substance .

[32] South China Sea Arbitration, para. 970.

[33] Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/method. 

[34] Ibid.

[35] Ibid, para. 898.

[36] Yoshifumi Tanaka, The International Law of the Sea (Cambridge University Press, 3rd ed, 2019) 324.

[37] Kenneth J. Vandevelde, ‘Treaty Interpretation from a Negotiator’s Perspective’ (1988)

21(2) Vanderbilt Journal of Transnational Law 281, 287-290.

[38] Vienna Convention on the Law of Treaties, art 31(1).

[39] Kenneth J. Vandevelde, ‘Treaty Interpretation from a Negotiator’s Perspective’ (1988)21(2) Vanderbilt Journal of Transnational Law 281, 290.

[40] Vitalius Tumonis, ”Judicial Creativity and Constraint of Legal Rules: Dueling Cannons of International Law”, (2012) 20(1) University of Miami International and Comparative Law Review 93, 109.

[41] Ibid, p110.

[42] Ibid. p113.

[43] Ibid. p116.

[44] Julius Stone, “Fictional Elements in Treaty Interpretation – A Study in the International Judicial Process” (1954) 1(3) Sydney Law Review 344, 347.

[45] Lakshman Guruswamy, ‘The Use of Courts to Protect the Environmental Commons’ (2019) 41(2) University of Hawaii Law Review 277, 284.

[46] Julius Stone, “Fictional Elements in Treaty Interpretation – A Study in the International Judicial Process” (1954) 1(3) Sydney Law Review 344, 353.

[47] Ibid.