The Protection of Species, Ecosystems and Biodiversity Under UNCLOS in Light of the South China Sea Arbitration: An Emergent Duty of Marine Ecosystem Restoration?

Abstract

The Tribunal in the South China Sea Arbitration referred to a number of additional international treaties in order to inform the general obligation to protect and preserve the marine environment in Article 192 of UNCLOS. This dynamic and systematic interpretative approach potentially opens the door to using a wide variety of instruments in order to inform our understanding of Part XII of UNCLOS. This paper begins by reviewing the interpretative methods used by the Tribunal, before applying it to the positive duty to maintain and improve the marine environment, which was identified by the Tribunal in their interpretation of Article 192. In particular, the paper considers how other international treaties and related instruments could be used to inform a duty to restore degraded marine ecosystems. It will also address the legal and practical challenges of adopting this strategy.