Publication Year: 2019

Due Diligence and Overlooked Evidence in the South China Sea Arbitration: A Note

Abstract: In the South China Sea Arbitration, the Tribunal decided that China had not breached the due diligence obligation to protect and preserve the marine environment under Articles 192 and 194(5) of the United Nations Convention on the Law of the Sea concerning Chinese fishers fishing with explosives, but that China had breached the same obligation regarding Chinese fishers harvesting endangered species. This article looks at how the Tribunal interpreted and applied the due diligence obligation and argues, from a Chinese perspective, 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.

[Article 192 of UNCLOS reads: “States have the obligation to protect and preserve the marine environment.” Article 194(5) of UNCLOS reads: “The measures taken in accordance with this Part shall include those 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.” -RPI]