A Secret Weapon to Stop China's Island Building: The Environment?
In the wake of recent revelations about the scope and speed of China’s land-reclamation activities in the South China Sea, no shortage of ink has been spilled decrying China’s behavior and calling for strategic responses.
But concerned states are hard-pressed to find easy solutions in their foreign-policy toolkits. No one is seriously discussing military measures or economic sanctions, and China has quickly dismissed criticism that it is bullying its neighbors. Long-standing diplomatic efforts within ASEAN to negotiate a Code of Conduct in the South China Sea have been undermined by the continuing failure of ASEAN countries to abide by the Declaration of Conduct they agreed to in 2002.
The net result is China’s increasingly rapid buildup of rocks and reefs in the Spratly Island chain, where it is building airstrips and other facilities on tiny features subject to claims by at least four different countries. Meanwhile, aside from the geopolitical implications, experts believe the dredging of ocean reefs required to facilitate this expansion is devastating the local marine ecology and contributing to an already dire environmental situation.
The thorniness of the problem is partly a function of the strategic asymmetries involved.
For China, digging up the ocean floor to construct artificial islands may be part of a broader strategy (however legally dubious) to bolster its sovereignty claims in disputes with neighboring countries—an effort the Pentagon refers to as changing “facts on the water.” The region is home to potentially huge oil and gas reserves, as well as rich fishing stocks, and China’s strategic interests in these resources are complemented by the expansion and projection of its naval defense capabilities.
For the United States, which takes no official position on the territorial disputes between China and its Southeast Asian neighbors, the interests are more generalized and indirect: freedom of navigation and commerce, peaceful resolution of disputes consistent with international law and the potential damage to U.S. credibility of failing to support allies against destabilizing conduct. Another dimension of asymmetry is the power differential between the People’s Republic of China (PRC) and smaller neighboring countries, whose conflicting claims (and their own prior reclamation work) put them at odds with China’s maritime ambitions.
Attempts to level the strategic playing field in the South China Sea are already underway. In 2013 the Philippines launched a legal case against China under the dispute settlement procedures of the UN Convention on the Law of the Sea (UNCLOS), seeking a ruling from an arbitration tribunal on the status of certain features China occupies and challenging its controversial “nine-dash line.” Vietnam recently submitted a statement to the tribunal supporting the Philippines’ position.
Although the tribunal has yet to decide whether it has jurisdiction to hear the case, the Philippines’ strategy of using international law to press its arguments—rather than through negotiations with China—may offer a blueprint for pushing back against China’s recent land reclamation activities. Here is where the environmental consequences of China’s island buildup are poised to play a central role.
Like all countries that have ratified UNCLOS, China has general legal obligations to protect and preserve the marine environment. UNCLOS specifically requires signatory nations to refrain from causing transboundary environmental harms and to take measures “necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.”
The treaty also calls upon states to conduct and communicate the results of environmental impact assessments. Importantly, these obligations are largely independent of questions about sovereignty and jurisdiction. And an independent tribunal can be convened under compulsory jurisdiction to interpret and apply them.