The Protection and Preservation of Endangered Species and Fragile Ecosystems and the Jurisdiction of the Arbitral Tribunal

Abstract

Despite China’s silence, the Tribunal examined two jurisdictional issues: whether preconditions to compulsory dispute settlement had been fulfilled and whether automatic limitations and optional military activities and law enforcement activities exceptions to jurisdiction applied. The preconditions refer to the absence of other agreements between the Philippines and China to settle disputes relating to the Convention and to the exchange of views regarding the settlement of the dispute. The Tribunal concluded that both preconditions had been fulfilled. The CBD was not an agreement to resolve disputes relating to the interpretation and application of the Convention, nor did it involve compulsory dispute settlement entailing binding decisions. The diplomatic documents submitted by the Philippines proved that exchanges of views had taken place. The Tribunal found that the automatic limitation referring to the coastal State’s sovereign rights in the EEZ did not in fact constitute a limitation; that the military activities exception was not applicable, given China’s declarations that its construction activities were for civilian purposes only; and that the law enforcement exceptions only referred to certain disputes over marine scientific research.