CYIL vol. 9 (2018)

VOJTĚCH POSPÍŠIL CYIL 9 ȍ2018Ȏ measures necessary to prevent their nationals from exploiting the living resources in the EEZ of another State party. 55 The Philippines also refer to the Advisory opinion for the SRFC, where it was decided that State has an obligation to ensure that its nationals and vessels comply with any conditions or regulations imposed by the coastal State when fishing within its EEZ and to ensure that vessels flying its flag do not engage in IUU fishing. 56 The Philippines concluded that Chines was not: “per se responsible for the action of its fishermen, but it was responsible for its own failure to control their illegal and damaging activities. ” 57 The Arbitral Tribunal has held that these areas are within the EEZ of Philippines and therefore only Philippines possesses sovereign rights with respect to resources in these areas. 58 The Arbitral Tribunal recalls Article 62(4) of the Convention, which sets out an illustrative list of possible administrative regulations in regards with fishing of other national within that state EEZ (see above). According to the Arbitral Tribunal, the Convention: “ imposes an obligation directly on private parties engaged in fishing that would apply to Chinese nationals and vessels engaged in fishing at Mischief Reef and Second Thomas Shoal and require them to comply with the terms and conditions of the laws and regulations of the Philippines. ” 59 The Arbitral Tribunal agrees with the Tribunal’s opinion formed in Advisory opinion for the SRFC regarding to the existence of due diligence obligation in preventing States nationals from unlawful fishing. 60 The Arbitral Tribunal finds that China has failed to exercise due diligence to prevent fishing by Chinese flagged vessels within Philippines’ EEZ. Submissions No. 11 and 12(b) Submissions No. 11 and 12(b) consist of Philippines’ claim that China has violated its obligations under the Convention to protect and preserve the marine environment, more specifically harmful fishing practices and harmful construction activities. 61 As far as the marine environment of South China Sea goes, it is considered one of the most biodiverse reef ecosystem in the world, which has many species recognised as vulnerable or endangered. 62 Since late 1990s, the Philippines’ authorities have recorded many harmful fishing practices by Chinese nationals, for example harvesting corals by dynamite, catching endangered species like sharks, turtles, etc., use of cyanide, use of illegal fishing gear and so on. 63 In 2013, China has started building the largest of artificial island, which was approximately 115 x 80 meters wide. 64 Since the end of 2013, China has created on top of the coral reefs around 12.8 million square metres of land, from millions of tons of dredged coral, rocks and

55 Ibid . para. 725. 56 Ibid . para. 726. 57 Ibid . para. 728. 58 Philippines v. China Arbitration, cit. op. 45 , para. 736.

59 Ibid . para. 740. 60 Ibid . para. 744. 61 Ibid . para. 815-817. 62 Ibid . para. 823. 63 Ibid . para. 827 et seq. 64 Ibid . para. 853.

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