CYIL vol. 9 (2018)

VOJTĚCH POSPÍŠIL CYIL 9 ȍ2018Ȏ of the Convention.“ 39 Tribunal continues that flag States have general obligations to ensure protection and preservation of marine environment and resources pursuant to Articles 192 and 193 of the Convention and also more specific obligation to “… effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag ”, pursuant to Article 94 of the Convention. 40 The Tribunal concludes its answer to first question with a clear view that the flag States are under an obligation to investigate, if other states reports that a proper jurisdiction and control has not been exercised, and to take proper action if needed. 41 Even though the Tribunal builds its legal construction concerning the due diligence on previous case-law, the Tribunal clearly shifts away from the dichotomy of due diligence obligation and direct obligation. The Tribunal also argues that the frequency of IUU fishing is not relevant to the issue as whether there is a breach of due diligence. 42 This may seem in contradiction with the Chamber’s advisory opinion 43 , yet the Tribunal sticks to the basic definition (or description) of the due diligence obligation, which is: “ a breach of ‘due diligence’ obligations of a flag State arises if it has not taken all necessary and appropriate measures ”. 44 Philippines v. China Arbitration On 22 January 2013, the Philippines has initiated arbitration proceedings against People’s Republic of China (hereinafter „China“) pursuant to Articles 286 and 287 of the Convention before the Permanent Court of Arbitration as an arbitral tribunal constituted under annex VII to the Convention. 45 The topic of territorial disputes in the South China Sea has become more and more prominent over the last few years; although the tensions has been steadily increasing for past decades. 46 Recently, the Minister for Foreign Affairs of Australia, the Minister for Foreign Affairs of Japan and the Secretary of State of the United States have issued a joint statement, which, among others topics, addressed maritime disputes in the South China Sea. Joint statement concluded that: “ …the ministers urged SCS (South China Sea) claimants to refrain from land reclamation, construction of outposts, militarization of disputed features, and undertaking unilateral actions that cause permanent physical change to the marine environment in areas pending delimitation. ”, and “ The ministers urged ASEAN member states and China to ensure that the COC (Code of Conduct for the South China Sea) be

39 Ibid . para. 134. 40 Ibid . para. 136, 137.

41 Ibid . para. 139. 42 Ibid . para. 150.

43 For example, Advisory opinion, op. cit. 6 , para. 110, 117 could be understood as i) due diligence is an obligation to ensure (not an obligation to achieve), and ii) there are many variables factors, which must be taken in account. This could easily be interpreted, that frequency is actually one of the factors, which must be scrutinised in order to find whether or not there has been breach of due diligence obligation. 44 Advisory opinion 2015, op. cit. 34, para. 150. 45 Permanent Court of Arbitration, The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China) , PCA Case No. 2013-19, 12 July 2016, Award, para 28. 46 China’s efforts to dominate the region have been escalating from late 60s’ and early 70s‘. For more information, see CHENG, T.: The Disputes over the South China Sea Islands in Tex. Int’l L.J. , Vol. 10, Issue 2, 1975, pp. 265-278.

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