Ocean Development & International Law

ISSN: 0090-8320 (Print) 1521-0642 (Online) Journal homepage: https://www.tandfonline.com/loi/uodl20

Due Diligence and Overlooked Evidence in the

South China Sea Arbitration: A Note

Jianping Guo & Peng Wang

To cite this article: Jianping Guo & Peng Wang (2019) Due Diligence and Overlooked Evidence in
the South China Sea Arbitration: A Note, Ocean Development & International Law, 50:2-3, 235-242,
DOI: 10.1080/00908320.2019.1582631

To link to this article: https://doi.org/10.1080/00908320.2019.1582631

Published online: 19 Apr 2019.

Submit your article to this journal

Article views: 518

View related articles

View Crossmark data

Citing articles: 1 View citing articles

Full Terms & Conditions of access and use can be found at

https://www.tandfonline.com/action/journalInformation?journalCode=uodl20
OCEAN DEVELOPMENT & INTERNATIONAL LAW
2019, VOL. 50, NOS. 2–3, 235–242
https://doi.org/10.1080/00908320.2019.1582631

Due Diligence and Overlooked Evidence in the South China

Sea Arbitration: A Note
Jianping Guo and Peng Wang
School of Law, Xi’an Jiaotong University, Xian, China

ABSTRACT ARTICLE HISTORY

In the South China Sea Arbitration, the Tribunal decided that China Received 28 November 2018
had not breached the due diligence obligation to protect and pre- Accepted 3 December 2018
serve the marine environment under Articles 192 and 194(5) of the
KEYWORDS
United Nations Convention on the Law of the Sea concerning
South China Sea Arbitration;
Chinese fishers fishing with explosives, but that China had breached Due Diligence Obligation;
the same obligation regarding Chinese fishers harvesting endan- IUU Fishing; UNCLOS;
gered species. This article looks at how the Tribunal interpreted and Marine Environment
applied the due diligence obligation and argues, from a Chinese per-
spective, that there were facts overlooked by the Tribunal that China
could have presented to counter the evidence of the Philippines,
which might have been enough to affect the decision on destructive
fishing had China participated in the Arbitration.

Introduction
On July 12, 2016, the Award of the South China Sea Arbitration1 was issued. Regarding
the two environmental claims involving illegal, unreported, and unregulated fishing
(IUU fishing) in Submission 11 of the Philippines, the Tribunal decided that China had
fulfilled its obligation to protect and preserve the marine environment set out in
Articles 192 and 194(5) of the United Nations Convention on the Law of the Sea
(UNCLOS)2 concerning Chinese fishers engaged in blast fishing.3 However, the
Tribunal decided that it did not have enough evidence that China had fulfilled the same
obligation concerning harvesting of endangered species.4 The decisions by the Tribunal
on the IUU fishing issues raise several questions. First, what were the factual and con-
ceptual differences in the evidence that led the Tribunal to render opposite conclusions
on China’s obligation of due diligence to protect the marine environment? Second,
what are the requirements of the due diligence obligation?
While it is common practice that a party in an adjudication will submit evidence that
is favorable to its case, it is important to emphasize that in the South China Sea
Arbitration the Tribunal did not have the chance to view the complete story because
China, due to its nonparticipation stance, did not submit evidence to the Tribunal.
Therefore, was there evidence that was overlooked by not being made available to the

CONTACT Jianping Guo guojianping14@gmail.com PhD student under the supervision of Prof. Jiangyu Wang,
E1003, Silk Road Institute of International and Comparative Law, School of Law, Xian Jiaotong University, 28 Xianning
West Road, Xian, China 710049.
This article has been republished with minor changes. These changes do not impact the academic content of the article.
ß 2019 Taylor & Francis Group, LLC
236 J. GUO AND P. WANG

Tribunal? The purpose of this contribution is to analyze how the Tribunal interpreted the
due diligence obligation and how it came to opposite conclusions concerning the same obli-
gation, as well as to provide some evidence that was not considered by the Tribunal.

Due Diligence Obligation and the Tribunal’s Application

Due Diligence Obligation
Article 192 of UNCLOS requires states to protect and preserve the marine environment,
and Article 194(5) provides that “rare or fragile ecosystems” and the “habitat of depleted,
threatened or endangered species and other forms of marine life” are components of the
marine environment. However, none of these, or of the other articles in UNCLOS, indi-
cates what specifically states are required to do to meet these obligations. There are also
questions concerning what is meant or included in the term “marine environment.”
Instead of agreeing with the view of the International Tribunal for the Law of the Sea
(ITLOS) in the 2011 Seabed Advisory Opinion that an article had to contain the wording
“to ensure” for a provision in the UNCLOS to qualify as a due diligence obligation,5 the
Tribunal agreed with the subsequent 2015 ITLOS Fisheries Advisory Opinion that a pro-
vision of UNCLOS does not have to contain certain specific expressions to create a due
diligence obligation.6 The Tribunal indicated that the obligation to protect the marine
environment is an obligation of conduct and, as such, that Article 192 is a due diligence
obligation.7 In terms of the requirements concerning due diligence, the Tribunal agreed
with the Pulp Mills Case8 and the Fisheries Advisory Opinion that states are required to
adopt rules and measures and ensure compliance with them.9

Fishing With Explosives

The Philippines submitted to the Tribunal photographs showing that Chinese fishers
were in possession of explosives in five different events from 1995 to 2006.10 However,
the Tribunal found that both the requirements for due diligence were met in that China
had adopted and updated its Fisheries Law in which Article 30 strictly prohibits blast
fishing and that “China may have taken measures to prevent such practices in the
Spratly Islands.”11 The Tribunal noted that in 2001, the Philippine Ambassador had
stated that the Chinese local fishing authorities had imposed a penalty on blast-fishing
activities near Scarborough Shoal.12 Based on this evidence, the Tribunal was satisfied
that a law adopted with one enforcement activity of it was sufficient to declare that
China had fulfilled its due diligence obligation under Articles 192 and 194(5) concern-
ing Chinese fishers engaged in blast fishing.
It is noteworthy that the Tribunal not only agreed with the criterion for due diligence
being the “adoption of appropriate rules and measures” set out in the Pulp Mills Case13
and the Fisheries Advisory Opinion,14 but also that the Tribunal expanded this to the
mere adoption of domestic law.15 By doing so, the Tribunal did not have to consider
whether the rules and measures adopted are appropriate in different situations. The cri-
terion was satisfied as long as there was a domestic law. Also of note is that regarding
the rather vague requirement of taking “all appropriate measures” and “administrative
measures” set out in the in the Pulp Mills Case16 and the Seabed Advisory Opinion,17
 OCEAN DEVELOPMENT & INTERNATIONAL LAW 237

the Tribunal provided a quantifiable standard for ensuring compliance with the law:
namely, it examined whether the illegal activity had been punished according to the
law. The enforcement of China’s Fisheries Law respecting the events identified by the
Philippines was not required. What was required was that there had been enforcement
of a similar type of illegal activity. There is no record of enforcement respecting any of
the five incidents identified by the Philippines.

Harvesting Endangered Species

Nine occasions were listed by the Philippines to show that Chinese fishers were engaged
in harvesting corals, marine turtles, sharks, and giant clams in the waters of
Scarborough Shoal.18 On two of these occasions the fishers were accompanied by
Chinese Marine Surveillance (CMS) vessels in April 2012. Another incident happened at
Second Thomas Shoal in May 2013, which was “believed to be gathering corals and
clams and dredging” under the protection of a Chinese naval ship and two CMS
ships.19 According to the Tribunal, while China had adopted the Law of the Protection
of Wildlife, it had not enforced it even though Chinese authorities were aware of the
just-described activities.20 Additionally, there was no evidence before the Tribunal show-
ing that the Chinese fishers who had been engaged in harvesting endangered species
were prosecuted.21 The Tribunal determined, therefore, that China had breached its due
diligence obligation to protect and preserve the marine environment respecting its fish-
ers poaching endangered species.22
The Tribunal took the view that the endangered species captured were a component
of the “marine environment” in Article 192.23 The Convention on International Trade
in Endangered Species of Wild Fauna and Flora (CITES)24 and the Convention on
Biological Diversity (CBD)25 were used by the Tribunal as the standard for recognizing
species that are under the risk of extinction.26 Arguably, by linking the CBD and CITES
to UNCLOS, the Tribunal brought these treaties into the binding dispute resolution sys-
tem under UNCLOS.27

The Overlooked Laws, Regulations, and Practices in China

China’s Laws and Regulations
Other than the Fisheries Law and the Law of the Protection of Wildlife, there are other
laws and regulations designed to protect the marine environment and regulate IUU
fishing in China. These include the Maritime Environmental Law, the Criminal Law,
and the Natural Reserved Area Regulation. There are also local regulations in Hainan,
the province that governs the South China Sea in China, including the Regulation on
Reserved and Protected Areas for Forestry and Wild Animals in Hainan,28 the
Regulation on Protection and Development of Coastal Zone in Hainan,29 the Marine
Environmental Protection Regulation in Hainan,30 the Reef Protection Regulation in
Hainan,31 and the Environmental Protection Regulation in Hainan.32
Besides national laws and provincial regulations, the Ministry of Agriculture has the
mandate to make regulations on protecting the ecosystems. In the Eight-year-plan for
the Protection of the National Ecosystem, section 4.7 deals with plans from 2013 to
238 J. GUO AND P. WANG

2020 with four specific projects having been launched: (1) the prevention of marine eco-
systems disaster; (2) the restoration of reefs and conservation of marine living resources
and endangered species; (3) the establishment of reserved marine areas; and (4) the pro-
liferation and reproduction of marine animals.33
The Philippines claimed that China had not taken all necessary measures to prevent
damage to endangered species and that there were less harmful measures that could be
taken, including the establishment of “a management plan that determines safe levels of
exploitation”; that “fishermen should be informed of the types of threatened species”;
and that “extraction of coral and giant clams” should be prohibited.34 However, “a man-
agement plan” had been adopted by China in the form of a yearly fishing moratorium
(for 19 consecutive years) to maintain a safe level of exploitation of fisheries in the
South China Sea.35 “Types of threatened species” are listed in the Directory on Special
Protection of Wildlife, which includes giant clams and sea turtles.36 According to
Article 37 of the Fisheries Law, it is strictly forbidden to exploit or harm endangered
species listed in the Directory. Violators may face criminal charges. Also of note is that
“extracting and damaging” reefs is strictly forbidden according to the Hainan Reef
Protection Regulation.37

China’s Practices
The Tribunal found that “there is no evidence in the record [to] indicate that China has
taken any steps to enforce those rules and measures against fishermen engaged in
poaching endangered species.”38 However, the following facts, if presented to the
Tribunal, might have been sufficient to demonstrate that China had taken actions to
enforce its laws.
The Tribunal stated that it “has seen no evidence that Chinese fishermen involved in
poaching of endangered species have been prosecuted.”39 There are records showing the
contrary. In 2014, thirteen fishers were prosecuted in Taizhou for fishing coral reefs.
Their sentences were from a year and a half to six years with fines.40 In Fuan, four fish-
ers were prosecuted for fishing coral reefs and were sentenced from six months to three
years with fines.41 In 2015, the local authorities of Sanya confiscated products made
from sea turtles and coral reefs from local shops,42 and a similar operation was carried
out in Qionghai.43
The Tribunal stated that Article 192 contains a “positive obligation to take active
measures” and a “negative obligation not to degrade the marine environment.”44 Apart
from the noted investigations and prosecutions, China had undertaken measures to pro-
tect endangered species including the adoption of five-year plans on the proliferation
and reproduction of aquatic animals.45 In 2015, there were 34 billion aquatic animals,
including endangered species, released into seas and lakes in China. The plan is to
release 40 billion aquatic animals annually by 2020.46

The CMS Vessels and Warships: The Chinese Side of the Story
Concerning the Chinese Marine Surveillance (CMS) vessels and warships, there were
facts unknown to the Tribunal. First, China viewed the two occasions of the CMS
 OCEAN DEVELOPMENT & INTERNATIONAL LAW 239

vessels accompanying fishing vessels in 2012 as part of its protection of territory. The
first incident involved a standoff between the two countries. The Philippines’ largest
warship entered the water claimed both by China and the Philippines.47 The purpose of
the CMS vessels was to protect Chinese territory, not to protect Chinese fishers poach-
ing endangered species. The second occasion was well reported that a military ship of
the Philippines at the Second Thomas Shoal was sinking. Since China also claims sover-
eignty over the feature, the 2013 incident was about the CMS vessels and warships try-
ing to prevent the Philippines providing support to its ship and to protect China’s
sovereignty, rather than protecting illegal fishing.48
The Chinese government underwent a structural reform after the 18th National
Congress of the Communist Party of China to redistribute power and responsibilities
among government agencies. Before this, when the just-described occasions happened,
the responsibility of the CMS vessels was to patrol Chinese territory and monitor ships
flying foreign flags entering Chinese territory.49 The Fishery Administration (FA) and
its vessels were in charge of, among other things, protecting endangered marine ani-
mals.50 These institutions were merged into the China Coast Guard in July 2013, with it
being the China Coast Guard that is the responsible authority to arrest illegal fishers. At
the time of the incidents, before the merger, the CMS ships and warships were respon-
sible for protecting Chinese territory and did not have the authority, nor the responsi-
bility, to arrest illegal fishers.
Although the CMS and Fishing Administration vessels were under different depart-
ments with different responsibilities, there is no excuse to say that the Chinese govern-
ment was unaware of the events. There is no evidence to show that the fishers in these
incidents were prosecuted. Regarding the blast fishing, the Tribunal was satisfied with
one prosecution and fine to show China’s enforcement of its Fisheries Law. The laws
and regulations adopted, the prosecution undertaken, along with the active measures to
reproduce the endangered species and protect their habitat, might have been enough to
demonstrate that China had acted with due diligence to protect and preserve the marine
environment concerning the protection of endangered species, had China participated
in the Arbitration and presented evidence.

Conclusion
Although wording in the UNCLOS respecting the protection of the marine environment
is general in nature, a due diligence obligation has been developed and expanded by the
South China Sea Arbitration, which now requires states to both adopt laws and enforce
them. This is of groundbreaking and game-changing importance. To show that a state
has fulfilled its due diligence obligation to protect the marine environment under
UNCLOS, the state must demonstrate that (1) appropriate domestic law has been
adopted and (2) the law has been enforced with prosecutions or punishment of the
illegal activity. Had China participated in the Arbitration and presented evidence to
counter the evidence of the Philippines, the decision of the Tribunal on harvesting
endangered species might have been different.
More generally, compared to the vague requirements respecting due diligence in pre-
vious cases of adopting “appropriate rules and measures” and ensuring compliance,51
240 J. GUO AND P. WANG

the requirements of due diligence developed by the South China Sea Arbitration are
more beneficial both to states and international adjudicative bodies. The requirements
are now quantifiable and detailed. There is a clearer standard for states to meet and a
more efficient and predictable path for international courts and tribunals for future
cases. Additionally, the understanding of the term “marine environment” has two more
components, namely, marine living resources and endangered species.
However, the expansion of due diligence brings disadvantages as well. Due diligence
was described in the Seabed Advisory Opinion as being “to deploy adequate means, to
exercise best possible efforts, to do the utmost, to obtain the result.”52 The enforcement
of law, which does not have to concern the exact incident that led one party to bring a
case against the other, is not a state’s “best possible efforts” or “utmost.” The
Arbitration lowers the standard and consequently degrades the effect of “to obtain the
result.” The obligation becomes clearer and easier to fulfill, but the purpose of marine
environmental protection is weakened at the same time. Overall, the expansions of due
diligence made in the South China Sea Arbitration are reasonable and bring more bene-
fits than disadvantages. However, future interpretations need to be carefully considered
as the function of the obligation remains of the utmost importance.

Funding
This article is supported by the Chinese National Social Science Fund (14AZD052) and the Key
Project Fund of the Ministry of Education of China (14JZD022).

Notes
1. South China Sea Arbitration (The Philippines v. China), PCA Case No. 2013-19, 12 July
2016, on the Permanent Court of Arbitration website at www.pca-cpa.org.
2. U.N. Convention on the Law of the Sea, 1833 U.N.T.S. 397.
3. South China Sea Arbitration, supra note 1, para. 975.
4. Ibid., para. 1203 (B) (12).
5. Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area (Seabed Advisory Opinion), ITLOS Reports 2011, para. 112.
6. Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission
(Fisheries Advisory Opinion), ITLOS Reports 2015, para. 134. Valentin Schatz, “Fishing for
Interpretation: The ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing
in the EEZ,” Ocean Development & International Law 47 (2016), p. 334, discusses the
difference in wording between Article 194 that states “to ensure” and Article 192, which
does not have this wording.
7. South China Sea Arbitration, supra note 1, paras. 744 and 964.
8. Pulp Mills on the River Uruguay (Argentina v. Uruguay) (hereafter Pulp Mills Case), [2010]
I.C.J. Reports, para. 197.
9. South China Sea Arbitration, supra note 1, paras. 944, 961, and 974 and Fisheries Advisory
Opinion, supra note 6, para. 131.
10. Ibid., supra note 1, para. 968.
11. Ibid., para. 975.
12. Ibid., paras. 967–975.
13. Pulp Mills Case, supra note 8, para. 197.
14. Fisheries Advisory Opinion, supra note 6, para. 131.
15. South China Sea Arbitration, supra note 1, para. 944.
16. Pulp Mills Case, supra note 8, para. 197.
17. Seabed Advisory Opinion, supra note 5, para. 218.
 OCEAN DEVELOPMENT & INTERNATIONAL LAW 241

18. South China Sea Arbitration, supra note 1, para. 950.

19. Ibid., para. 951.
20. Ibid., para. 964.
21. Ibid., para. 915.
22. Ibid., para. 1203 (B) (12).
23. Ibid., para. 956.
24. Convention on International Trade in Endangered Species of Wild Fauna and Flora, 993
U.N.T.S. 243.
25. Convention on Biological Diversity, 1760 U.N.T.S. 79.
26. South China Sea Arbitration, supra note 1, para. 956.
27. See Stephen Fietta, Jiries Saadeh, Laura Rees-Evans, “The South China Sea Award: A
Milestone for International Environmental Law, the Duty of Due Diligence and the
Litigation of Maritime Environmental Disputes,” Georgetown International Environmental
Law Review 711 (2017), p. 745.
28. The People’s Government of Hainan Province, “The Regulation on Reserved and Protected
Areas for Forestry and Wild Animals in Hainan,” 31 August 2015, at www.hainan.gov.cn/
data/law/2015/08/2008 (accessed 12 November 2018).
29. The People’s Government of Hainan Province, “Regulation on Protection and Development
of Coastal Zone in Hainan,” 2 April 2013, at www.hainan.gov.cn/data/law/2013/04/1852
(accessed 12 November 2018).
30. The People’s Government of Hainan Province, “The Marine Environmental Protection
Regulation in Hainan,” 17 July 2012, at www.hainan.gov.cn/data/law/2012/08/1785 (accessed
12 November 2018).
31. The People’s Government of Hainan Province, “The Reef Protection Regulation in Hainan,”
16 October 2000, at www.hainan.gov.cn/data/law/2007/09/313 (accessed 12
November 2018).
32. The People’s Government of Hainan Province, “The Environmental Protection Regulation
in Hainan,” 20 March 2000, at www.hainan.gov.cn/data/law/2007/11/901 (accessed 12
November 2018).
33. National Development and Reform Commission, “Eight-year-plan of the Protection and
Preservation of National Ecosystem,” 11 March 2015, at www.sshb.gov.cn/upload/html/
20150311144729823.pdf (accessed 19 July 2016).
34. South China Sea Arbitration, Hearing on the Merits and Remaining Issues of Jurisdiction
and Admissibility, Day 4, 30 November 2015, p. 156.
35. Xinhua, “China Reaffirms Non-acceptance of South China Sea Arbitration,” 30 June 2016,
at www.xinhuanet.com/english/2016-06/30/c_129105084.htm (accessed 12 November 2018).
36. Ministry of Forestry, Ministry of Agriculture, “Directory on Special Protection of Wildlife,”
14 January 1989, available on National Forestry and Grassland Administration website at
http://www.forestry.gov.cn/main/3954/content-1063883.html (accessed 15 January 2019).
37. Hainan Reef Protection Regulation, supra note 31.
38. South China Sea Arbitration, supra note 1, para. 964.
39. Ibid., para. 915.
40. See Qiong Hu, “Marine Police Investigated and Arrested Massive Number of Coral Reefs
Illegal Hunting Activities in Zhejiang,” 24 October 2014, at www.zjsgat.gov.cn/jwzx/cgzs/
201410/t20141024_747366.htm (accessed 2 August 2016).
41. See “Judgement on Harvesting Coral Reefs,” 15 May 2013, Open Law, at openlaw.cn/
judgement/f17ce26a432f43d4a4a4fe175eeaf516 (accessed 2 August 2016).
42. Ocean and Fishery Bureau of Sanya, “Investigation on the Illegal sales of Products Made
from Endangered Species,” 3 March 2015, at dof.sanya.gov.cn/yzyj/3115.html (accessed 19
July 2016).
43. Qionghai District Attorney’s Office, “Qionghai Started Investigation on Harvesting and Sale
of National Protected Animals,” 15 June 2015, at www.hi.jcy.gov.cn/M001/view/128535/
00560005 (accessed 27 November 2016).
44. South China Sea Arbitration, supra note 1, para. 941.
242 J. GUO AND P. WANG

45. Department of Fishery, “Notice of Releasing Aquatic Animals in 2015,” 22 May 2015, at
www.cnfm.gov.cn/tzggyzj/201505/t20150522_4609759.htm (accessed 19 July 2016).
46. Ibid.
47. For reports of this incident, see Floyd Whaley, “Philippines and China in a Standoff at Sea,”
11 April 2011, New York Times, at www.nytimes.com/2012/04/12/world/asia/diplomatic-
resolution-sought-in-south-china-sea-standoff.html?_r¼0 (accessed 19 July 2016). See also
“Philippines ‘Withdraws Warship’ Amid China Stand-off,” 12 April 2012, BBC, at www.
bbc.com/news/world-asia-17686107 (accessed 19 July 2016).
48. For reports of this incident, see Jeff Himmelman, “A Game of Shark And Minnow,” 17
October 2013, New York Times, at www.nytimes.com/newsgraphics/2013/10/27/south-china-
sea (accessed 19 July 2016); see also “Philippines Lodges Protest over China Ship Blockade,”
11 March 2014, BBC, at www.bbc.com/news/world-asia-26524388 (accessed 19 July 2016).
49. State Oceanic Administration, “Report of Enforcement of Marine Related Laws in the year
of 2011,” 16 March 2012, at www.soa.gov.cn/xw/hyyw_90/201211/t20121109_1084.html
(accessed 25 October 2016).
50. Wild Marine Life Protection Office, “The Offices and Their Responsibilities of the
Department of Fishery,” 18 September 2014, at www.yyj.moa.gov.cn/201409/t20140918_
4059118.htm (accessed 25 November 2016).
51. Pulp Mills Case, supra note 8, para. 197 and Fisheries Advisory Opinion, supra note 6,
para. 129.
52. Seabed Advisory Opinion, supra note 5, para. 110.