Environment case vs China is right, but is it practical?

ACCORDING to statements from the Department of Justice (DoJ) earlier this week, the government is accelerating its plans to file a case against China for environmental destruction in the Philippines’ exclusive economic zone (EEZ) in the West Philippine Sea and is aiming to bring the matter before the Permanent Court of Arbitration in The Hague sometime between now and the end of next month. While the Philippines unquestioningly has the legal and moral right to bring such a charge against China, and the evidence of China’s criminal destruction, even the small amount of information shared with the public so far, is absolutely indisputable, we are nevertheless compelled to question whether filing a case in the chosen venue is the best, most practical course of action.

In a briefing on January 15, Justice Assistant Secretary Jose Dominic Clavano said the department was now drafting the complaint and that, hopefully, it would be finalized and submitted by the end of this month or sometime in February. The proposal to file a case was first raised by Justice Secretary Jesus Crispin Remulla last September after extensive evidence was gathered by the Philippine Coast Guard (PCG) detailing reef and seafloor damage caused by illegal fishing and dredging activities by Chinese ships at Rozul (Iroquois) Reef and Escoda Shoal.

Remulla said that the government had been collecting evidence of China’s destructive activities “for years” but that the new evidence collected by the PCG provided even stronger documentation. Remulla also downplayed the connection of the proposed filing with the ongoing dispute with China over control of the West Philippine Sea, saying that regardless of the territorial row, the case should be filed “since the destruction of the environment is a sin against humanity.”

We absolutely agree with the government’s sentiment, but we have serious doubts that its chosen course of action will have any useful result. The arbitral tribunal at The Hague already ruled that China is liable for environmental damage in its 2016 decision that effectively denied China’s claims of sovereignty over most of the West Philippine Sea. In that ruling, the tribunal said that “China had caused severe harm to the coral reef environment” and that it had “violated its obligation to preserve and protect fragile ecosystems and the habitat of depleted, threatened, or endangered species” and “inflicted irreparable harm to the marine environment.”

As is well-known, despite the moral victory that the 2016 arbitral award provided the Philippines, China refused to participate in the proceedings or even acknowledge, let alone honor, any of its findings. It is an absolute certainty that China will take exactly the same course with the proposed environmental case and that the anticipated ruling in the Philippines’ favor will thus be as equally hollow as the 2016 ruling. Unless the government’s objective is mere virtue-signaling, it must be asked, what is the point of proceeding, particularly since doing so will incur no small expense to the public coffers?

The real objective, of course, should be to compel China to immediately cease its destructive activities and to take appropriate measures to repair the damage it has caused. Going through a lengthy, costly legal process in a court half a world away with the foreknowledge that China will not even participate will in no way achieve that. We believe a better course of action would be for the government to find other ways to bring public pressure to bear on China.

The alternative to a legal case might be thought of as a sort of “name and shame” campaign. Bringing the complaint to the UN in the form of a resolution in the General Assembly could be one step, but more than that, the government should seek to publicize the issue as much as possible — not just here in the Philippines, but targeting parts of the world where China would be faced with uncomfortable questions. For example, China has put considerable effort into building relations with some Pacific Island nations, all of which are quite sensitive about their own environments, and for which clear evidence of wanton Chinese disrespect for marine ecosystems would certainly be off-putting. China might not listen to a tribunal in the Netherlands, but it may listen to those who could thwart some of its economic and geopolitical aims.