CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ DUE DILIGENCE UNDER THE LAW OF THE SEA finalized in a timely manner, and that it be legally binding, meaningful, effective, and consistent with international law. ” 47 The situation in South China Sea is rather uncertain both from the legal and political point of view. Territorial claims are made by China, Philippines, Vietnam, Malaysia, Brunei and Taiwan to various land and sea zones. 48 The most controversial part of these disputes is that China makes its claims via a “9-Dash Line” or “Nine-Dotted Line”. Assertion of said approach was, however, ruled to be contrary to the Convention and therefore without lawful effect. 49 On 19 February 2013, China issued a Note Verbal No. (13) PG-039 and presented it to the Department of Foreign Affairs of the Republic of the Philippines. 50 In this Note Verbal, China rejected the arbitration proceedings and returned the Notification and Statement of Claim to the Philippines. The Note Verbal was followed by the Position Paper of the Government of the People’s Republic of China on the matter of Jurisdiction concerning this arbitration, issued on 7 December 2014 by the Ministry of Foreign Affairs of the People’s Republic of China. 51 The Position Paper lengthily elaborates Chinese position on the essence of the subject-matter of the arbitration and bilateral instruments agreed upon by China and Philippines. China concludes that: “ [it] has decided not to accept or participate in the present arbitration. ” Even though China has rejected its participation in this arbitration, it still issued a significant amount of Note Verbal and presented them to the Philippines, thus stating its position on various issues and indirectly participating in the arbitration proceedings. 52 For the purpose of this paper relevant parts of the Philippines v. China Arbitration lies within submissions No. 9, 11 and 12(b) of the Philippines’ Claims. Submission No. 9 Philippines claimed that China has been interfering with the sovereign rights and jurisdiction of the Philippines over living resources starting in April 2012 especially around Mischief Reef, Scarborough Shoal and Second Thomas Shoal by occupying these territories and preventing Filipino fishermen from any fishing activities in the area, even though these territories are within the exclusive economic zone (hereinafter “EEZ”) of Philippines. 53 During May 2013, Armed Forces of the Philippines have repeatedly reported presence of Chinese fishing vessels accompanied by Chinese Navy Frigate. 54 Philippines argued that pursuant to the Article 56 of the Convention, States have an obligation to take the 47 Office of the Spokesperson, Australia-Japan-United States Trilateral Strategic Dialogue Ministerial Join Statement, August 6, 2017, Washington, DC. 48 HOUCK, J. W., ANDERSON, N. M.: The United States, China and Freedom of Navigation in the South China Sea in Wash. U. Global Stud. L. Rev. , Vol. 13, Issue 3, 2014, p. 441. 49 Philippines v. China Arbitration, cit. op. 45, para. 278. 50 Note Verbal No. (13) PG-039 is available online here: https://www.documentcloud.org/documents/2165478- phl-prc-china-note-verbale.html. 51 Full text available here: http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml. 52 Annexes 668-692 of the Philippines’ supplemental documents submission, available online here: https://files. pca-cpa.org/pcadocs/The%20Philippines%27%20Supplemental%20Documents%20-%20Volume%20II%20 %28Annexes%20608-709%29.pdf. 53 Philippines’ Memorial – Volume I, submitted 16 March 2015, pp. 168-171, available online: https://files.pca- cpa.org/pcadocs/Memorial%20of%20the%20Philippines%20Volume%20I.pdf. 54 Philippines v. China Arbitration, cit. op. 45, para. 718-721.

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