ALLEGED FAILURE TO PROTECT AND PRESERVE THE MARINE ENVIRONMENT
(SUBMISSIONS NO. 11 AND 12)
Introduction
SUBMISSIONS NO. 11
The Philippines’ allegations concerning China’s environmental violations relate to two general categories
of conduct: harmful fishing practices and harmful construction activities.
This Section addresses the Parties’ dispute concerning the protection and preservation of the marine
environment. This dispute is reflected in the Philippines’ Submission No. 11, which provides (as
amended):
(11) China has violated its obligations under the Convention to protect and preserve the marine
environment at Scarborough Shoal, Second Thomas Shoal, Cuarteron Reef, Fiery Cross Reef,
Gaven Reef, Johnson Reef, Hughes Reef and Subi Reef;
This dispute is also reflected in the portion of the Philippines’ Submission No. 12 concerning
environmental harm from China’s construction at Mischief Reef:
(12) China’s occupation of and construction activities on Mischief Reef (b) violate China’s duties
to protect and preserve the marine environment under the Convention; . . .
Factual Background:
The Marine Environment of the South China Sea
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 recognised as
vulnerable or endangered. While coral reefs are amongst the most biodiverse and socioeconomically
important ecosystems. Threats to coral reefs include overfishing, destructive fishing, pollution, human
habitation, and construction. This means that the impact of any environmental harm occurring at
Scarborough Shoal and in the Spratly Islands may not be limited to the immediate area, but can affect
the health and viability of ecosystems elsewhere in the South China Sea.
Harmful Fishing Practices and Harvesting of Endangered Species
Documents adduced by the Philippines record a number of instances since the late 1990s in which
Chinese fishing vessels have engaged in environmentally harmful fishing practices and the harvesting of
endangered or threatened species.
The following are some Chinese fishermen Incidents at Scarborough Shoal in the Period from 1998 to
2012
(a) The earliest incidents detailed by the Philippines date from January 1998 when, according to
police reports, 22 Chinese fishermen were involved in harvesting corals and marine turtles in the
waters of Scarborough Shoal. In March 1998, 29 Chinese fishermen at Scarborough Shoal were
reported to be found in possession of dynamite and corals. Several of the fishermen were
prosecuted and convicted under Philippine fisheries laws.
(b) Further incidents of unlawful harvesting of coral were reported in a Note Verbale dated 14
January 2000, in which the Philippines asked China to take “resolute action” against fishermen
found with corals at Scarborough Shoal, and expressed concern.
(c) On 29 January 2001, Philippine authorities photographed and confiscated the catch of
endangered “sharks, eels, turtles and corals” from four Chinese fishing vessels in the vicinity of
Scarborough Shoal. The incident led to diplomatic exchanges in which China asserted its
sovereignty over Scarborough Shoal and noted that “the Chinese Government attaches great
importance to environmental protection and violators are dealt with in accordance with Chinese
laws and regulations.”
(d) On at least three occasions in 2002, the Philippine Navy confiscated explosives, cyanide, corals,
sea shells, and sea clams from Chinese fishing vessels at Scarborough Shoal.
(e) On 31 October 2004, Philippine naval vessels again intercepted Chinese fishing vessels at
Scarborough Shoal laden with giant clams.
(f) On 30 December 2005, during a “routine inspection” at Scarborough Shoal, the Philippine vessel
BRP Artemio Ricarte found four Chinese fishing vessels in possession of “assorted corals, live
clamshells weighing about 16 tons and illegal fishing gears.” The incident led the Chinese Vice
Foreign Minister to summon the Philippine Ambassador in Beijing to convey China’s “grave
concern and strong opposition” and reiterate China’s position that it has “indisputable
sovereignty over Scarborough Shoal and adjacent waters.”
(g) On 10 April 2012, the Philippine naval vessel BRP Gregoria del Pilar, and smaller boats launched
from it, conducted a “Visit, Board, Search and Seizure Operation” on Chinese fishing vessels
inside Scarborough Shoal and reported finding “large amounts of corals and giant clams” inside
the first Chinese vessel boarded.
The incident of 10 April 2012 led to what the Philippine Navy described as a “diplomatic stand-off . . .
following the discovery of Chinese fishing vessels . . . harvesting corals and capturing endangered marine
species and the subsequent interference by Chinese maritime law enforcement vessels.”
(h) On 26 April 2012, the Philippine Coast Guard reported to the Bureau of Fisheries that it had seen
a Chinese fishing boat depart Scarborough Shoal “loaded with giant clams and other marine
products” but noted that “all we can do is observe”, we cannot apprehend the poachers
because they are being protected by two China Marine Surveillance ships.
(i) The Philippines expressed its concerns to ASEAN Member States on 21 May 2012, about the
issue of “Chinese fishermen poaching in the area” noting that “although these fishermen have
already evaded arrests and prosecution for illegal fishing, nevertheless, Chinese Government
vessels continue to ply the area in much larger numbers now.” Simultaneously, the Philippines
sent a Note Verbale to the Chinese Embassy in Manila stating that: the increase in the number
of China’s vessels in the area imperils the marine diversity in the Shoal and threatens the
marine ecosystem in the whole West Philippine Sea. The Philippines has documented the
many instances where Chinese fishermen have unlawfully dredged the area and illegally
harvested giant clams and corals.
(j) In response, China recalled that after the incident of 10 April 2012, it had 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.”
More Recent Incidents in Other Parts of the South China Sea
Documents adduced by the Philippines indicate that in the period from the early 1990s until
2013, China undertook some construction and land reclamation on these features, typically
starting with basic aluminium, 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.
The Philippines’ Position
The Philippines’ submits that China’s actions have damaged the diverse and fragile ecosystem of the
South China Sea. The Philippines states that “if unchecked [China’s] activities will continue to pose a
significant threat to the marine environment of the South China Sea, and of all of the States which
border the Sea. The Philippines recalls that the general obligation on States under Article 192 to “protect
and preserve the marine environment”—which it considers to form part of customary international law
—covers areas within national jurisdiction as well as areas beyond national jurisdiction. According
to the Philippines, this requires States to take “active measures” to prevent harm, to “conserve marine
living resources,” and to “preserve the ecological balance of the oceans as a whole.” The Philippines
observed that even without appearing in the arbitration, China could easily have made its
evaluation available to the Tribunal and added that China’s non-appearance should not exempt it from
“the normal burden of proof that attaches to any assertion of fact in inter-State proceedings.”
China’s Position
China has not directly stated its position with respect to the allegations as presented in the
Philippines’ Submissions No. 11 and 12(b). Nevertheless, China’s position can be discerned from
contemporaneous official statements. Statements of Chinese officials relating to the incidents between
1998 and 2006 were primarily focused on asserting Chinese sovereignty over Scarborough Shoal and
objecting to interference by Philippine authorities. Following the confiscation of endangered species
from Chinese fishing vessels in
February 2001, the political counsellor from the Chinese Embassy in Manila reiterated that
“Scarborough Shoal is part of Chinese territory and . . . Chinese fishermen have been fishing in the
area since ancient times” but reportedly added that “with regard to the illegal catching of turtles
and corals, . . . .China has a law on this and those who violate the law will be punished.”
The Tribunal’s Considerations over Submission No. 11 in its Original Form
The Tribunal recalls that in its original form, Submission No. 11 sought a declaration that
“China has violated its obligations under the Convention to protect and preserve the marine
environment at Scarborough Shoal and Second Thomas Shoal.” In its Award on Jurisdiction, the
Tribunal held that Submission No. 11 reflects a dispute concerning the protection and preservation of
the marine environment at relevant features within the South China Sea and the application of
Articles 192 and 194 of the Convention. The Tribunal found that this is “not a dispute concerning
sovereignty or maritime boundary delimitation, nor is it barred from the Tribunal’s consideration by
any requirement of Section 1 of Part XV.” The Tribunal noted that because the environmental
obligations in Part XII apply to States irrespective of where the alleged harmful activities took place,
its jurisdiction is not dependent on the question of sovereignty over any particular feature, on a prior
determination of the status of any maritime feature, on the existence of an entitlement by China or the
Philippines to an exclusive economic zone in the area, or on the prior delimitation of any
overlapping entitlements. Accordingly, the Tribunal found that it has jurisdiction over the dispute
relating to Submission No. 11 in its original form. On 9 September 2014, a Chinese Foreign Ministry
Spokesperson stated that “the construction work China is undertaking on relevant islands is mainly
for the purpose of improving the working and living conditions of people stationed on these islands.”
Conclusion
Based on the considerations outlined above, the Tribunal finds 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 of the Convention. The Tribunal further
finds that China has, through its island-building activities at Cuarteron Reef, Fiery Cross Reef,
Gaven Reef (North), Johnson Reef, Hughes Reef, Subi Reef and Mischief Reef, breached Articles
192, 194, 194, 197, 123, and 206 of the Convention.
OCCUPATION AND CONSTRUCTION ACTIVITIES ON MISCHIEF REEF
(SUBMISSION NO. 12)
Introduction
the Tribunal addresses the Parties’ dispute concerning China’s activities on Mischief Reef and its
construction there of installations and artificial islands. This dispute is reflected in parts (a) and (c) of the
Philippines’ Submission No. 12, which provides as follows:
(12) China’s occupation of and construction activities on Mischief Reef
(a) Violate the provisions of the Convention concerning artificial islands, installations
and structures;
(c) constitute unlawful acts of attempted appropriation in violation of the
Convention;
To avoid duplication, the Tribunal has addressed the matters raised in the Philippines’ Submission
No. 12(b)—asserting that China has violated its “duties to protect and preserve the marine
environment”—in connection with Submission No. 11
Factual Background
China’s Initial Activities on Mischief Reef (1995 to 2013)
(a) Chinese construction activities on Mischief Reef reportedly date back at least to January 1995,
when fiberglass structures flying the Chinese flag were observed at four separate locations on
the reef platform. Fishermen from the Philippines reported the presence of “an estimated
1,000 uniformed men” aboard eleven Chinese vessels anchored there and in the structures on
the reef.
(b) On 6 February 1995, According to Philippine records, China had denied that it was building a
base on the feature. The Philippines expressed “serious concern” over Chinese activities on
Mischief Reef. The Philippines added that China’s actions violated “the spirit of the 1992 ASEAN
Declaration on the South China Sea” and requested the immediate removal of Chinese vessels
from the reef.
(c) On 10 March 1995, China’s Vice Premier and Minister of Foreign Affairs reportedly described
the structures on Mischief Reef as “typhoon shelters” constructed by Chinese fishing authorities
“for the purpose of protecting the lives of Chinese fishermen and their production.” The
Minister reiterated that the structures were civilian in nature and did “not pose threat to
any country.”
(d) Construction on Mischief Reef between 1999 and 2013 appears to have been relatively limited.
China’s intensive construction of artificial islands on seven coral reefs commenced in
2014, with construction on Mischief Reef resuming from January 2015. On 28 May 2015,
for instance, the Philippine Secretary of National Defense, identified “around 32 dredger
vessels, 32 cargo ships and three (3) ocean tugs” deployed at the reef.
(e) On 12 February 2015, China replied that “China has indisputable sovereignty over the Nansha
Islands and its adjacent waters. The development of any facility in the Nansha islands falls within
the scope of China’s sovereignty.”
The Philippines’ Position
The Philippines submits that China’s activities at Mischief Reef violate Articles 60 and 80 of the
Convention, relating to artificial islands, installations and structures and constitute unlawful acts of
attempted appropriation under the Convention. Finally, the Philippines argues that subsequent Chinese
statements cannot change the nature of the activities it has undertaken. According to the Philippines,
“the nature of the activity complained of is determined as of the time that activity occurred. The
respondent cannot thereafter unilaterally change the jurisdictional facts regarding its past conduct,
especially two-and-a-half years after the proceedings were commenced.”
The Philippines also considers China’s construction of artificial islands, installations, and other structures
to constitute acts of attempted and unlawful appropriation. Taking into account China’s assertions of
sovereignty over the reef, as well as the presence of China’s flag, the Philippines considers that it is
“beyond dispute” that China claims to have appropriated Mischief Reef.
China’s Position
In bilateral meetings from 20 to 21 March 1995, the Chinese Vice Minister for Foreign Affairs informed
his Philippine counterpart that the reef’s structures “are not military [structures], they are wind shelters
and Chinese fishermen have long used Mischief [Reef] as wind shelter.” On 16 June 2015, China’s
Foreign Ministry Spokesperson reiterated that “the main purpose of China’s construction activities is to
meet various civilian demands.”
The Tribunal’s Considerations
In its Award on Jurisdiction, the Tribunal held that Submission No. 12 reflects a dispute concerning
“China’s activities on Mischief Reef and their effects on the marine environment ”It determined
that this is not a dispute concerning sovereignty or maritime boundary delimitation, nor is it barred
from the Tribunal’s consideration” As a preliminary matter, and as noted previously in this Award, the
Tribunal is of the view that the Parties’ dispute in relation to the Philippines’ Submission No. 12 appears
to stem from divergent understandings of their respective rights in the areas of the South China
Sea within 200 nautical miles of the Philippines’ baselines that are encompassed by the ‘nine-dash line’,
including Mischief Reef. Each Party, in other words, has conducted its affairs from the premise that it,
and not the other Party, has sovereign rights over Mischief Reef.
Conclusion
Based on the considerations outlined above, the Tribunal finds that China has, through its
construction of installations and artificial islands at Mischief Reef without the authorisation of the
Philippines, breached Articles 60 and 80 of the Convention with respect to the Philippines’ sovereign
rights in its exclusive economic zone and continental shelf. The Tribunal further finds that, as a low-
tide elevation, Mischief Reef is not capable of appropriation.
