Philippine Justice Secretary, Jesus Remulla, has recently announced that the Philippines plans to sue China for a second time. The Philippines has accused China of the destruction of biodiversity and coral reefs in "the Philippines exclusive economic zone", causing irreversible damage to the marine environment. That said, the Philippines has not yet identified the international judicial body to which this lawsuit will be filed.

The legal trick that the Philippines plays does not aim at protecting marine environment. Rather, the Philippines has a notorious record of damaging the marine environment. Its overfishing in the South China Sea has caused an everlasting, devastating impact on biodiversity.

In January 1997, the Philippine Institute for Development Studies pointed out that commercial fishing in the Philippines has been overfished since the 1980s in its report titled "Overfishing in the Philippine Commercial Marine Fisheries Sector". The Associated Press of the United States also reported in April 2023 that the lack of the Philippines' control over commercial fishing has led to a sharp decline in fish stocks, and the livelihoods of Philippine coastal fishermen are in trouble.

According to a Survey Report on the Damage to Coral Reef Ecosystem by Illegally Grounded Military Vessel at Ren’ai Jiao published by the Chinese Ministry of Natural Resources in July 2024, the illegally grounded Philippine vessel, the Sierra Madre Mountain, has severely damaged the coral reef ecosystem. The Philippines Congress also approved earlier the funding for the construction of "permanent facilities" on the Ren’ai Reef, consolidating its illegal "control" over the reef at the expense of the ecological environment.

The Philippines’ act of turning "international rule of law" into "political manipulation" must be refuted by legal language.

According to the past litigation, disputes over marine environmental protection may be submitted to two dispute settlement mechanisms: the International Court of Justice, or the United Nations Convention on the Law of the Sea. The ICJ rarely deals with marine environmental protection, but more with maritime delimitation. The lack of the reserve of professional scientific knowledge in the ICJ has left the UNCLOS as the best possible option.

Compared with 12 years ago, the dispute submitted to the UNCLOS has changed from maritime delimitation to marine environmental protection, thus posing new challenges:

On the one hand, disputes over marine environmental protection are not excluded by the Chinese declaration under Article 298 of UNCLOS, despite the real intention of the alleged arbitration to serve the Philippines’ political ends. ICJ, in the Border and Transborder Armed Actions (Nicaragua v. Honduras), upheld that it was irrelevant whether a State bore a political agenda in bringing a dispute to justice.

On the other hand, if the ITLOS or the Annex VII ad hoc arbitral tribunal illegally finds its prima facie jurisdiction over the alleged arbitration to be established following the erroneous award of the South China Sea Arbitration, provisional measures pose another challenge. Provisional measures aim at preserving the rights of disputing parties prior to the final judgment. It is commonly used in the inter-state, international investment, and international commercial dispute settlement. Pursuant to Article 290 (1) of the UNCLOS, prevention of "serious harm to the marine environment" constitutes one of the legal grounds requiring provisional measures. For the sanctification of provisional measures, the ITLOS and the ad hoc tribunal must establish its prima facie jurisdiction over the dispute, the urgency of the situation, and the possibility of “irreparable harm”. “Precautionary principle” would be the guidance for the ITLOS and ad hoc tribunal to prescribe provisional measures for prevention of the damage to the marine environment. The principle allows provisional measures to be issued even when the environmental damage cannot be firmly proven scientifically. It is, therefore, not a significantly high threshold. Of the many marine environmental disputes under the UNCLOS, most of the disputes involve provisional measures - including the Southern Bluefin Tuna case (Australia and New Zealand v. Japan),  the MOX Plant case (Ireland v. the United Kingdom), and the Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore).

Confronted with the Philippines’ legal trap, China is by no means arrested with folded arms, and the Philippines is doomed to pay for its whistle.

Precedents of the ICJ indicate that certain international disputes consist of “substantive dispute” and “prima facie dispute”. Admissibility of the latter depends on the jurisdiction of the former. As for the alleged arbitration, the “prima facie dispute” is doubtlessly the marine environmental dispute, while the “substantive dispute” is the delimitation of the exclusive economic zone. Should the ITLOS or the ad hoc tribunal find its jurisdiction over the delimitation of the exclusive economic zone not established, which has already been excluded by China’s declaration, the Philippines’ allegations are no longer tenable and thus lack admissibility.

Meanwhile, if the Philippines files a request for provisional measures, China may face a ruling by the ITLOS and the ad hoc tribunal to suspend its fishing and construction activities. The Philippines, however, may be bound by the same ruling.

China still reserves the right to file a counterclaim of provisional measures. In the Bluefin Tuna case, Japan, being the respondent, submitted to the ITLOS that it would file a request for provisional measures against Australia and New Zealand if the Tribunal finds the prima facie jurisdiction to be established. 

The Tribunal does not necessarily issue provisional measures as requested by the Philippines. The Tribunal has its discretion. Article 192 of the UNCLOS states that the preservation and protection of the Marine environment is a "general obligation" of States. Given this, even if the provisional measures requested by the Philippines originally intended to bind China only, there is a great chance for the ITLOS to prescribe provisional measures that impose equal obligations on both sides in an attempt to protect the marine environment. In this vein, the Philippines bears an equal legal risk.

Frequently, the Philippines pays lip service to upholding the international rule of law. It also set "four red lines" for China's lawful activities in the South China Sea. The Philippines' reliance on the United States for its commitment to mutual defense has become the biggest variable jeopardizing peace and stability in the South China Sea. Whether it is the US adding military bases in the Philippines and deploying the "TYPHON" medium-range missile system, or the Philippines constantly "winking" at irrelevant states and inviting them to interfere with the situations of the South China Sea, the Philippines is trying to launch a "new Cold War" in the South China Sea with the US and its Allies under the cover of international law. Despite the Philippines’ wild ambition, it will end up in a cocoon of its own.

（Author: Jiahao Mu, Assistant Research Follow, Huayang Center for Maritime Cooperation and Ocean Governance)