In South China Sea case, ruling on environment hailed as precedent

The Hague tribunal said China's harm to coral reefs violates environmental provisions of the Law of the Sea, a ruling seen as having a lasting impact on protecting the ocean.

For the past several years, US marine scientist John W. McManus has been using satellite imagery to track China’s fishing practices and construction of artificial islands in the South China Sea.

Earlier this year, after viewing images of reef destruction, he decided to go see it for himself. In February, he ventured to the Spratly Islands – roughly 300 miles west of the Philippines – and surveyed several reefs, including one that Chinese clam dredgers had heavily exploited.

“The damage was much worse than even I expected it to be,” Mr. McManus, professor of marine biology and fisheries at the University of Miami, says in a telephone interview. “I swam over one whole kilometer of reef before I saw a single living invertebrate. It was really massive, massive destruction.”

Many fishing fleets worldwide employ harmful practices to harvest seafood from coral reefs, including the use of boat propellers, poisonous cyanide, and dynamite. But last week, an international tribunal in the Hague named China as a primary driver of reef destruction in the South China Sea, because of its fishing practices and construction of artificial islands.

That finding was part of a major ruling by the tribunal, the Permanent Court of Arbitration, that rejected China’s assertion that it enjoys historic rights over a vast majority of the South China Sea. It was a striking victory for the Philippines, which filed the case.

While the court’s decision on maritime rights was significant, experts say its findings on coral reef destruction could have more lasting impact, both in the South China Sea and elsewhere. Because of this damage, the court ruled, China had violated its legal obligations as a signatory to the UN Convention on the Law of the Sea.

Since 2013, China has used dredging vessels to create more than 12.8 million square meters – or nearly 5 square miles – of land on top of reefs in the Spratly Islands alone, according to the tribunal’s  July 12 ruling.

“The Tribunal has no doubt that China’s artificial island-building activities on the seven reefs in the Spratly Islands have caused devastating and long-lasting damage to the marine environment,’’ stated the judgment, which cited the research of McManus and other scientists.

Important environmental tool

Paul S. Reichler, lead counsel of the Philippines legal team, says the court’s ruling sets an important precedent.

“This is really the first case to go to judgment over environmental provisions of the Law of the Sea,” says Mr. Reichler, a partner in the US-based firm Foley Hoag.

“This is very significant,” he says in a telephone interview. In the future, he adds, this judgment could be used to hold other governments liable for damaging the ocean, whether it be with toxic waste or discarded plastic.

In China, there’s been little public reporting on details of the judgment, including destruction of coral reefs. Many Chinese view the Hague tribunal as part of a foreign plot to hijack their historic rights and perpetuate US military hegemony in the South China Sea.

On Tuesday, China indicated it would continue to create artificial islands in the South China Sea, regardless of the tribunal ruling. State media reported that the nation’s top naval chief had told a visiting US Navy officer that Beijing “will never give up halfway” on its island building.

Damage from clam harvest

While Beijing boycotted the Hague proceedings, it says it is working to minimize environmental impacts in the South China Sea. Chinese officials say they’ve undertaken extensive environmental reviews before engaging in island “reclamation,” and have only built on reefs that were already dead or extensively damaged.

In its ruling, the tribunal credited China for taking actions to prohibit the use of dynamite and cyanide among its fishing fleets.  Nonetheless, it found that Chinese fishermen – often working under the protection of the nation’s coast guard – have caused extensive damage to reefs, especially through harvests of giant clams, an endangered species.

McManus and others have documented how Chinese boats use their propellers to dislodge giant clams, damaging the reefs and suspending lethal sediment into marine waters. McManus estimates that China has caused 70 square kilometers (27 square miles) of coral reef damage through propeller dredging. He describes the practice as more damaging than anything he’s seen in four decades of coral reef research.

McManus also says China is being disingenuous by claiming it only builds on degraded or damaged reefs. Often, he says, those reefs are first killed by clam-cutting boats, after which Chinese dredger vessels arrive and pile up sand on the dead coral.

Coral reefs will naturally recover if left undisturbed for a time, but not if sand and debris is left piled upon them.

Fisheries crash predicted

Aerial photographs contained in the 500-page tribunal ruling include numerous “before-and-after” images of these reefs. Several show airport runways and sand covering up colorful coral that appeared to be thriving in 2012.

“These are some of the last remaining pristine coral formations in the world,” says Reichler, adding that is not just the coral that is being damaged. “These reefs attract the smaller marine creatures that attract the larger ones. The food chain begins there.”

Some scientists, including McManus, have publicly predicted that the South China Sea will experience a historic fisheries crash in coming years. Various countries are vying for fewer fish, with no regional management plan to sustain harvests.

Edgardo Gomez, a Filipino marine scientist, shares those concerns, but notes that research is difficult, partly because of intervention by the Chinese coast guard.

“It is not easy to conduct marine scientific research in the South China Sea without being harassed,” Gomez said at a recent conference in Washington hosted by the Center for Strategic and International Studies.

Matter of prestige

Given China’s superior military power, there is not much the Philippines or other nearby nations can do to force Beijing to change its behavior, much less repair some of the environmental damage. Yet Reichler notes that the tribunal’s ruling is legally binding on China, and in past international court cases, countries have tended to comply with such orders, even when they disagreed with them.

“If China doesn’t do this, it will lose prestige and [face] retribution,” says Reichler. “China aspires to a leadership role in the international community, and the community expects leaders to respect the international legal order.”

During the administration of President Ronald Reagan, the United States ignored a judgment from an international court to stop the mining of harbors in Nicaragua. Chinese state media often note this fact when arguing that Beijing can similarly refuse to recognize the Hague tribunal’s jurisdiction.

Reichler, who successfully represented Nicaragua in that case, says China would be making a mistake by copying the United States. “That shameful moment in US history contributed to a decline of US prestige in the world,” he says.