China must comply with treaty on protected areas – expert

MANILA, Philippines — China will be under a “very clear obligation” to comply with measures that apply in marine protected areas in the South China Sea as signatory of the landmark United Nations High Seas Treaty, according to a Japanese international law expert.

In an interview with The STAR, professor Kentaro Nishimoto of Tohoku University emphasized that the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement, adopted last year, is the first-ever legally binding international treaty to govern and protect international waters, conserve and sustainably use marine biodiversity beyond the areas of national jurisdiction.

“The term beyond area of national jurisdiction means beyond the exclusive economic zone and beyond the continental shelf. So it is the part of the ocean which does not belong to any particular state’s jurisdiction and in that area in the high seas the new agreement will allow taking measures to protect the marine diversity, especially in the form of marine protected areas,” Nishimoto said.

“It is very important to consider using this tool to protect biodiversity of the South China Sea,” he said.

According to Nishimoto, it is a tool that can be used to designate a protected area on the high seas.

A scientific and technical body will be established under the agreement to assess a proposal to establish marine protected area. A conference of the parties will decide and vote.

The Philippines, after its ratification and the treaty comes into force, may decide to table a proposal to establish marine protected areas because of its very rich biodiversity.

“It will serve a very big purpose concerning marine biodiversity and it will also be a way to show support for the rule of law in the South China Sea because this will be consistent with what the arbitral award said,” Nishimoto said. “So we can take steps to protect biodiversity while at the same time taking the position that there is a high seas area.”

China has yet to ratify the agreement.

“The South China Sea claim is very crucial even though it has no grounds in international law. I think we can see a situation where China opposes the efforts to establish marine protected area under this agreement,” Nishimoto said.

Even as China, a signatory, does not ratify the agreement, Nishimoto said, “I do not think there is anything in the procedure of the treaty to allow China to block the marine protected area.”

“But even if that is the case, China is under a more general obligation to protect and preserve marine environment so under the law it will not be able to do everything that it wants freely. There is a possibility to disregard a measure that is in place. I think there is a possibility given China’s very bad track record of activities in the South China Sea,” he added.

He explained that the BBNJ is focused on biodiversity and not a bilateral dispute issue.

“I think there will be an outcry from the international society if that kind of issue happens. China may still even disregard that but I think it will create a considerable pressure on China to be at least considerate of the marine biodiversity of the South China Sea,” he stated.

Kenichi Matsuda, deputy chief of mission of the Japanese embassy in Manila, reaffirmed Japan’s commitment to the rule of law and collaboration with like-minded partners in ensuring maritime freedom and environmental protection.

“As enhancing the rule of law is one of Japan’s foreign policy pillars, we are determined to work together hand-in-hand with other like-minded partners, especially with the Philippines, to ensure that universally accepted values and principles (are upheld),” Matsuda said.

The Philippines signed the High Seas Treaty in September 2023. It was finalized in June 2023 after nearly two decades.