CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ DUE DILIGENCE UNDER THE LAW OF THE SEA sand. 65 The construction of such projects, and more importantly the technologies used, could seriously impact the reef system and directly lead to its destruction. 66 The ArbitralTribunal stresses that the protection and preservation ofmarine environment has a prominent position within the Convention. 67 The most general provision of the Convention provides that “ States have the obligation to protect and preserve the marine environment ” 68 The Arbitral Tribunal finds that the Article 192 of the Convention contains an active (or positive) obligation to take measures to protect and preserve the marine environment, whilst also containing negative obligation not to degrade the marine environment. 69 The Arbitral Tribunal recalls the Advisory opinion for the SRFC with regard to Articles 192 and 194 of the Convention and concludes that these provisions set forth due diligence obligations upon States. 70 Philippines had brought its concerns about harmful fishing to China, yet China failed to enforce national and international rules upon its nationals; in some of the incidents, Chinese authorities have been present at a time and location where these activities happened. 71 The Arbitral Tribunal had access to large amount of evidence, notably independent experts’ report, which clearly indicated that construction activities lead to serious damage of marine environment, where recovery is unlikely. 72 The Arbitral Tribunal concluded that China has breached i) Articles 192 and 194(5) of the Convention by its toleration and protection of, and failure to prevent Chinese fishing vessels engaging in harmful harvesting activities, and ii) Articles 192, 194(1), 197, 123 and 206 of the Convention by its island-building activities. 73 Assessment of the Philippines v. China Arbitration As indicated above, the Philippines v. China is both complicated and interesting. However, how does it influence the whole legal system of due diligence obligations? As far as the Submission No. 9 goes, the Arbitral Tribunal based its findings upon rights and duties of costal States within their EEZ as set out in Article 58(3), in conjunction of presumed laws and regulations of costal States as set out in Article 62(4) of the Convention. The Advisory opinion for the SRFC, however, supported its finding by Articles 94(6), 192 and 193 of the Convention, which set out more general obligations. Even, though the outcome is more or less the same, the Arbitral Tribunal ruled based on provisions which only apply to EEZ. The Arbitration Tribunal came up with an interesting observation, when it concluded that the Article 62(4) of the Convention imposes obligation directly on private parties (i.e. natural and juridical person), whereas Article 58(3) of the Convention imposes due diligence obligation upon States. This dual construction seems unsustainable, because Article 62(4) only provides demonstrative list of laws and regulations, which are already anticipated

65 Ibid . para. 976. 66 Ibid . para. 857. 67 Philippines v. China Arbitration, cit. op. 45 , para. 939. 68 The Convention, Article 192. 69 Philippines v. China Arbitration, cit. op. 45 , para. 941. 70 Ibid . para. 944.

71 Ibid . para. 962 et seq. 72 Ibid . para. 982 et seq. 73 Ibid . para. 992, 993.

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