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

(edited on March 30, 2022)

Introduction

The increasing threat to our marine environment caused by harmful human activities has drawn attention to the legal interpretation. This essay examines how the Tribunal applied judicial creativity to interpret some articles in Part XII of the United Nations Convention on the Law of the Sea (UNCLOS).

The essay first reviews three man-made problems of the marine environment in the South China Sea. It then proposes a premise that judicial creativity has largely affected the interpretation to protect the ocean. Starting from here, the essay analyses three legal techniques employed by the Tribunal. Following on from that, it explores the significance of the capacity of Part XII of UNCLOS. Finally, it concludes why judicial creativity is necessary with respect to interpreting Part XII of UNCLOS yet insufficient to change the status quo.

Human Activities vs. Negative Marine Impact

In the Philippines’ allegations over China’s marine environmental violations, there are some concerns over the harmful effects on the overall ecological system. At least three types of negative human conduct have produced detrimental effects: harmful fishing practices, harvesting endangered or threatened species, and the use of cyanide and dynamite. These activities will be discussed with the following analysis to interpretation.  

Judicial Creativity

Yoshifumi states, ‘the law of the sea is one of the oldest branches of public international law’.[1] To interpret it dynamically is necessary to solve any novel problems. The above disputes are hard to be solved with clear-cut legal rules as Part XII is most likely a legal framework. Thus, Vitalius points out that even international courts deal with hard cases where the legal solutions are ambiguous, which naturally permits the usage of judicial creativity.‘ [2] We can also establish the link between judicial creativity and discretionary power, the latter means the judge may use his or her subjective judgment reasonably.

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 would be elaborated below.

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

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 destroys the high level of biodiversity of species as well. 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 ‘the obligation to protect and preserve the marine environment’ in Art 192 shall contain ‘due diligence’.

Due diligence is an ancient phrase that extended its reach into 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] and this principle binds the States to reach a compromise in a dispute of interests. [5] Both due diligence and the principle of neighborliness have been echoed in Art 193 of Part XII of UNCLOS, which declares that States shall keep the balance between exploiting natural resources and protecting the marine environment. [6] And this is also how the Tribunal views China’s case concerning harmful activities.

Due diligence contains an expectation of the foreseeability of risk,[7] which means the risk may be anticipated. [8] When the States perform certain tasks, such as fishing, they are expected to predict certain risks to not to harm 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 its capability to harbor a high degree of species richness. [10]

Although it’s hard to define the vague standard of ‘due diligence’,[11] the Tribunal explains 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]

The first element, echoed by the ICJ’s case law that alertness and prevention are essential to protect our environment, [14] is in line with the ‘precautionary principle’.[15] Precautionary is defined in the dictionary 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 is behind every due diligence underlined by the Tribunal.

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’ provisions. The Tribunal distinguished 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 have owed 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 so carefully incorporated 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 occurred, put it simply, if there is no damage then talking about responsibility will make no sense, but due to the harm to the environment is unrepairable the measure to only focus on the responsibility might have limited effect to protect the environment. [18] When a State constitutes the breach and the liability occurred, 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)

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

It is vital to distinguish endangered species from other natural resources according to Art 194(5). In the process of identifying China’s dangerous harvesting, the Tribunal finds the definition of ‘endangered species’ in the UNCLOS is absent. For example, whether those sea turtles are the species under threat needs a legal reference.

The way that the Tribunal refers to the appendixes of CITES to identify coral species, [21] is an example of how the Tribunal 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 shall be interpreted together in the context. [22]

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 keep global concordance. [24] As CITES is upheld by the global community to be part of international law, [25] the Tribunal considers it is reasonable to add to the provision of Art 194(5) to form the interpretation.

Furthermore, the constantly changing of such existing 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 has the purpose to create reconciliation between parties for future fulfillment.[26]

However, such flexible interpretation may forge a negative effect. First, States parties signed these treaties because of the ‘stability’ fixed by written words, but the Tribunal’s decision could be regarded as ‘uncertainty’ as the decision is based on ever-changing standards which may make it hard to be established as ‘legal precedent’. Usually, the legal precedent is developed 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)

In the past decades, China’s fishing vessels were found to employ dynamite and cyanide, including blasting caps, detonating cords, plastic explosives, etc. In addition to the jeopardy to the living and endangered resources, it may decompose the rare or fragile ecosystem on an unprecedented scale.

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

The Convention embodies 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]

However, the observation made by Ferse Report, initially holds that cyanide and blast fishing are ‘highly destructive methods.[32] The “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, ocean is a place which is much easier to be polluted due to the following movement of currents: movement of shipping due to trade, natural currents, and winds, also the pollution caused by ecological reasons. [36]

When these ‘highly destructive methods’ are assessed as ‘pollution’, the Tribunal sheds light on the disastrous consequences of such ‘methods’, instead of the ‘methods’ themselves. The Tribunal did not establish the causal link between the destructive methods and the pollution but directly declares that this is ‘pollution’. To say that ‘cyanide causes pollution’ is different from saying ‘cyanide is the pollution’. If the ’method’(cyanide) is the cause, there might be multiple concurrent causes leading to the ‘pollution’, which will make using ‘cyanide’ less liable.

Although neither the dynamite nor the pollution is mentioned in the provisions, the Tribunal adopts the ‘reading down’ technique to limit the possible 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 the ocean currents too and protects and preserves the marine environment in the utmost way.

General Influence on the Interpretation

Overall, the influence on the interpretation of Part XII of UNCLOS from the Tribunal’s decision will be no more than that of the three principal schools of treaty interpretation, namely, the textual approach, the subjective approach, and the teleological approach. [37]

In the decision-making process of South China Sea Arbitration, the Tribunal heavily relied on teleological interpretation, which is a method in conformity with the purpose of the legislation. The Tribunal also employed the textual approach as the linguists. Such blending is in the light of the spirit of Art 31(1) of the Vienna Convention on the Law of Treaties (VCLT),[38] due to the Vienna Convention adopting both the textual approach and the teleological approach to discover the actual meaning.[39]

To depart from ‘ordinary meaning’ to interpret Part XII may jeopardize the ‘legal certainty’, and courts usually struggle with striking the balance between keeping the consistency with precedent and being free from constraints.[40] 

And the ‘ambiguity’ of the provisions under Part XII of the UNCLOS is the pre-condition why the Tribunal can 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 be the result of multiple parties achieving a consensus to limit the possible damage during the negotiation, and such ambiguity makes the room for flexible reading.[42]

In the South China Sea arbitration, the ‘precautionary approach’ taken by the Tribunal would naturally maximize the relevant obligations to minimize the chance of possible damage. This approach, as argued by Sir Gerald Fitzmaurice, is better to be used as the ‘last resort’ to the judges when exercising common sense, particularly in ‘good faith and with intelligence ‘.[43]

In a word, 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, ‘hidden duty’ interpreted by the Tribunal makes the capacity of this treaty much vaster. From the Tribunal’s perspective, the written provisions are exhibited as the ‘tip of the iceberg’. The Tribunal revealed the ‘hidden duty’ bit by bit to find out the intention of the law, as treaty terms may be intended to demonstrate the compromise between the States, but some contents might fail to reach consensus.[44] ‘Hidden duty’, the ‘failed consensus’, potentially turns Part XII of UNCLOS into a more comprehensive convention.

Second, the use of judicial protection is to protect the global environmental commons by triggering other rules of law. [45] When interpreting the treaty, there is a clash between two doctrines: ‘’effectiveness’’ and ‘’restrictive interpretation’’. [46] While the former tends to maximize the effect based on the text, the latter would be very much focusing on reading the treaty obligation restrictively ‘in favour of sovereignty’, that is ‘treaty obligations must be construed in a way to impose no obligation or the lesser obligation’.[47] In fact, this reflects the fundamental conflict between the global community and sovereignty. The Tribunal has clearly adopted the view that the doctrine of ‘effectiveness’ should prevail when contradicting the doctrine of ‘restrictive interpretation’. It aims at promoting the purpose of the Convention.

Conclusion

The Tribunal’s decisions on South China Sea Arbitration set a great example of how judicial creativity may influence the treaty interpretation in the realm of the law of the sea. The relevant judicial creativity can be unfolded in several ways under the principles of the ‘precautionary approach’. First, borrowing the ancient legal concept to expose and impose the hidden obligation. Second, merging other pertinent laws to flesh out the legal framework. Third, detecting the fundamental prejudice of human conduct which poses a threat to the ocean.

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

[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] 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.

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

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

[17] Rio Declaration on Environment and Development 1992.

[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.

[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.