UP LAW A2015 PIL Reviewer:
138, which is a
Supplement # 1
Supplement, p. 7: Definition of Armed Attack in
CASE CONCERNING MILITARY AND PARAMILITARY
ACTIVITIES IN AND AGAINST NICARAGUA
(NICARAGUA v. USA)
Armed attack includes not merely action by regular armed
forces across an international border, but also “the
sending by or on behalf of a State of armed bands, groups,
irregulars or mercenaries, which carry out acts of armed
force against another State of such gravity as to amount to
an actual armed attack conducted by regular forces or its
substantial involvement therein.”
Remember:
 Action by regular armed forces; OR
 Sending of armed groups, whose actions of such
gravity that it amounts to action by regular
armed forces.
“The Court does not believe that the concept of ‘armed
attack’ includes not only acts by armed bands where such
acts occur on a significant scale, but also assistance to
rebels in the form of the provision of weapons or logistical
or other support.” (verbatim from the case text, as it
appears in Reviewer, p. 7)
 Clarification: this statement reeks of poor
sentence construction, which inevitably confuses
the reader as to what it is trying to say. (feeling
Prof. Balane)
 The Court ruled that assistance in the form of
the provision of weapons or logistical or other
support is NOT INCLUDED in the concept of
“armed attack.”
 HOWEVER, it “may be regarded as a threat or
use of force, or amount to intervention in the
internal or external affairs of other States” in
itself.
Correction, p. 12: LEGALITY OF THE THREAT OR
USE OF NUCLEAR WEAPONS (ADVISORY OPINION)
This request for an advisory opinion was made by the UN
General Assembly. It principally asked: “Is the threat or use
of nuclear weapons in any circumstance permitted under
International Law?” The main substantive issues regarded
sources of international legal obligation and the
interaction of various branches of international law,
particularly the norms of international humanitarian
law (jus in bello) and the rules governing the use of force
(jus ad bellum).
(The facts as stated in Reviewer, p. 7 properly applies to
the LEGALITY OF THE THREAT OR USE OF NUCLEAR
WEAPONS [WHO Request] in Reviewer, p.
different case.)
Correction, p. 16: SAUDI ARABIA v. ARABIAN
AMERICAN OIL COMPANY (ARAMCO)
…which was previously given the exclusive right to
transport oil which it had extracted from its concession
area in Saudi Arabia.
Supplement, p. 56-57: CASE CONCERNING PEDRA
BRANCA/PULAU BATU PUTEH, MIDDLE ROCKS AND
SOUTH LEDGE (MALAYSIA v. SINGAPORE)
(The discussion in Reviewer, p. 56-57, focuses on the issue
concerning the main island of Pedra Branca. The
controversy regarding its smaller maritime features
[Middle Rocks and South Ledge] may be more relevant. To
wit:)
Singapore: Middle Rocks and South Ledge are
dependencies of the island of Pedra Branca
 They form geographically and
morphologically a single group of
maritime features;
 Fate of the principal involves the rest –
since Singapore exercises sovereignty
over the latter, such features must be
awarded to them as well.
Malaysia: Malaysia exercised sovereignty over Middle
Rocks and South Ledge
 Granted oil concessions;
 Covered by its Fisheries Act;
 Singapore failed to protest.
Middle Rocks should remain with Malaysia.
While particular circumstances concerning Pedra Branca
formed the basis of the passing of its title to Singapore,
the same do not apply to other maritime features.
South Ledge belongs to the party in whose territorial sea
it lies.
There is no legal basis for saying that low-tide elevations
can, from the view point of acquisition of sovereignty, be
fully assimilated with islands or other land territory.
South Ledge falls within the overlapping territorial waters.
Since pursuant to the Agreement, the issue of sorting our
territorial waters was not raised, the Court decided not to
touch on that. It just said, 15 to 1, that South Ledge
belongs to the State in the territorial waters of which it is
located.
Supplement, p. 134: CASE CONCERNING or inconsequential.
ELETTRONICA SICULA S.P.A. (ELSI) (UNITED STATES
OF AMERICA v. ITALY) “Is what is being
done compliant with
Parties to a treaty can agree that a certain customary rules of armed
norm shall not apply between them or on any breach of conflict?”
the provisions of the treaty. For this to be done, the state Time to Prior to armed During or after
parties must “express clearly the intent not to be bound by consider: conflict armed conflict
a particular customary norm in their relations inter se.”
(e.g. they can stipulate that the doctrine of exhaustion of
local remedies prior to bringing an action before the ICJ Command Responsibility
would not apply) This is a doctrine in international/state responsibility and
international criminal responsibility which lays down the
While the Friendship, Commerce and Navigation Treaty rule that the leaders of a state or commanding officers
between the parties did not categorically require the within its armed forces would be held responsible for the
exhaustion of local remedies before the ICJ can acquire internationally reprehensible crimes committed by their
jurisdiction over a particular case, such omission cannot be subordinates.
taken to mean that the customary norm requiring
exhaustion of local remedies had been dispensed with. This doctrine has seen application in the case of
PROSECUTOR v. TADIĆ, wherein Tadić was held
Doctrine of exhaustion of local remedies. – This is a responsible for the atrocities committed by his men in
procedural rule which requires that before a state can Bosnia-Herzegovina.
bring an action before the ICJ in the exercise of its
diplomatic protection of its nationals (i.e. bringing an
action in behalf of an injured national), local remedies Law-making Treaties v. Contractual Treaties
available at the domestic level should be exhausted first. Some authors have made a distinction between law-
making treaties and treaty-contracts. However, others
This rule does not apply in cases where the state itself is have been quick to point out that the difference is
the injured party. “theoretically faulty”, such that “all treaties are law-
making inasmuch as they lay down rules of conduct which
the parties are bound to observe as law.” (Oppenheim)
Correction, p. 138: LEGALITY OF THE THREAT OR
USE OF NUCLEAR WEAPONS (ADVISORY OPINION) If a distinction is to be made at all, consider the following:
(WHO REQUEST) (Magallona, 2005)
(This section deals with the jurisdictional aspect of the case.
For a discussion on the merits of the case, refer to p. 12) Law-making Treaty Contractual Treaty
Same force in positive international law; no hierarchy
WHO submitted a request to the ICJ for an advisory opinion. between them
The question was “in view of the health and environmental All treaties are law-making in the sense that they are
effects, would the use of nuclear weapons by a State in legally binding on parties
war or other armed conflict be a breach of its obligations Contemplates a broad Short-term, particular
under international law including the WHO Constitution?” sphere of relations and are questions
Concluded for short term
Concluded for long-term purposes; validity
Additional Information purposes terminated after fulfilment
of purposes
Jus ad bellum v. Jus in bello
Jus ad bellum Jus in bello UNCLOS; Regime of Islands
Semantics: jus AD bellum jus IN bello
= before war = during war
UNCLOS, Art. 38.
Issue/s: Legality of the use Observance of
Regime of islands
of force by a state international
humanitarian law 1. An island is a naturally formed area of land,
“Can force be validly during armed surrounded by water, which is above water at
used in this conflict; question of
high tide.
instance?” legality of the use of
2. Except as provided for in paragraph 3, the
force already moot territorial sea, the contiguous zone, the
 exclusive economic zone and the continental
shelf of an island are determined in accordance
with the provisions of this Convention applicable
to other land territory.
3. Rocks which cannot sustain human habitation or
economic life of their own shall have no
exclusive economic zone or continental shelf.

Relevance. – Under RA 9522, or the new Baselines Law,

the Kalayaan Group of Islands (Spratly Islands claimed by
the Philippines, KIG) were no longer considered as part of
the main Philippine archipelago, and instead treated as a
separate but appurtenant “regime of islands” under Article
121 of the UNCLOS.

Impact on the Philippine Claim. – Note that several of the

components of the KIG are little more than rocks, shoals,
and elevated reefs, with only few of its features capable of
sustaining “human habitation or economic life”.

Under the “regime of islands” provisions, such

components would no longer be able to generate EEZ and
continental shelves of their own. This severely limits the
basepoints that the Philippines can use in making its claim
over the KIG and its waters.

In MAGALLONA et.al. v. EXECUTIVE SECRETARY, G.R No.

187167 (2011), the Supreme Court ruled on the validity of
the classification of the KIG as a regime of islands. (see
Reviewer, p. 40)

UNCLOS; Marine Pollution

Annex A: Overview of Marine Pollution, as reported by
Maria Emilynda Jeddahlyn Pia V. Benosa III-C

Annex B: Summary of “Marine Pollution Laws”, as

reported by Bettina Rayos del Sol, III-C

UNCLOS; Maritime Salvage

Annex C: Provisions on Maritime Salvage, as reported by
Pauline Marie Gairanod, III-A, and Ma. Katrina Lucas, III-C
 10/16/2013

ANNEX A :
Nakaligo ka na ba sa dagat ng
basura?

Marine Pollution
Maria Emilynda Jeddahlyn Pia V. Benosa III-C

Sources of Marine Pollution

Marine
Pollution
Art. I, par. 1 (4), UNCLOS

The introduction by man, directly or

indirectly, of substances or energy
into the marine environment,
including estuaries, which results or
is likely to result in such deleterious
effects as harm to living resources
and marine life, hazards to human
health, hindrance to marine activities,
including fishing and other legitimate
uses of the sea, impairment of quality
for use of sea water and reduction of
amenities;

Land-based Discharge Land-based Discharge

actually constitutes 80%
of ocean pollution

pipes discharging
directly into marine
waters

sewage, industrial,
chemical and food
processing wastes

riverine flows into the

sea

1
 10/16/2013

Sources of Marine Pollution Atmospheric/Natural Input

actually constitutes 80%
of ocean pollution

IMO Top Ten

Cholera, Cladoceran
Water Flea, Mitten
Crab, toxic algae (R,
G, B tides), Round
Goby, European
Green Crab, Asian
kelp, Zebra Mussel,
North Pacific Seastar,
North American Comb
Jelly

Alien species in the ballast water

Other threats in Marine

Transport Sources of Marine Pollution

2
 10/16/2013

Maritime Transport and

Dumping
Dumping

any deliberate disposal

of wastes or other matter
from vessels, aircraft,
platforms or other man-
made structures at sea;

any deliberate disposal

of vessels, aircraft,
platforms or other man-
made structures at sea;

NOT Dumping
the disposal of wastes or
Dumping
other matter incidental to, or placement of matter for a
derived from the normal purpose other than the mere
operations of vessels, disposal thereof, provided
aircraft, platforms or other
man-made structures at sea
that such placement is not
contrary to the aims of the intentional
and their equipment, other UNCLOS.
than wastes or other matter
transported by or to vessels, accidental
aircraft, platforms or other
man-made structures at sea,
operating for the purpose of operational
disposal of such matter or
derived from the treatment of
such wastes or other matter
on such vessels, aircraft,
platforms or structures

Article 210
Dumping Sources of Marine Pollution
Pollution by dumping

1. States shall adopt laws and regulations to prevent, reduce and control pollution of the
marine environment by dumping.
2. States shall take other measures as may be necessary to prevent, reduce and control
such pollution.
3. Such laws, regulations and measures shall ensure that dumping is not carried out
without the permission of the competent authorities of States.
4. States, acting especially through competent international organizations or diplomatic
conference, shall endeavour to establish global and regional rules, standards and
recommended practices and procedures to prevent, reduce and control such pollution.
Such rules, standards and recommended practices and procedures shall be re-examined
from time to time as necessary.
5. Dumping within the territorial sea and the exclusive economic zone or onto the
continental shelf shall not be carried out without the express prior approval of the coastal
State, which has the right to permit, regulate and control such dumping after due
consideration of the matter with other States which by reason of their geographical
situation may be adversely affected thereby.
6. National laws, regulations and measures shall be no less effective in preventing,
reducing and controlling such pollution than the global rules and standards.

3
 10/16/2013

Oil Exploration and

Production

Oil Exploration and

Production
1960s: IMO Conventions

After oil spills, realization of need of

standards in other aspects

Created the most complex and highly

developed international law regime

MARPOL 73/78 (International

Convention for the Prevention of
Pollution from Ships)

MPAs, closed areas, Special Areas,

PSSAs, Areas of Environmental
Interest

UNCLOS Mandates
Legislation to Prevent, Reduce and Enforcement (Arts. 213 - 222) by:
Control Pollution of the Marine
Environment • States - Acts of loading of
wastes/other matter within its territory
• Art. 207. Pollution from Land Based or at its off-shore terminals
Sources
• Flag States - vessels flying its flag or
• Art. 208. ... from seabed activities vessels/aircraft of its registry
subject to national jurisdiction
• Port States - within a port/at an off-
• Art. 209. ... from activities in the Area shore terminal, for discharge outside
(Part XI) IW, TS, EEZ

• Art. 210. ... by dumping • Coastal States - dumping/other

• Art. 211. ... from vessels
• Art. 212. ... from or through
atmosphere
pollution within TS, EEZ, or onto CS;
right of physical inspection after
refusal to give information
the

4
 10/16/2013

Law & Order Law & Order

•Climate change: Carbon capture and storage, geo-engineering

Human •Biodiversity protection: bio-prospecting/genetic resources, access

Fisheries Shipping Pollution and benefit sharing, marine protected areas, possible Implementing
Uses
Agreement
Specific
Global FAO IMO UNEP
conventions •Fisheries: Tuna!

Regional RFMOs x RSCs RSCs •Shipping: air emissions, ballast water exchange, port waste reception

Fisheries & Energy/Envi •Security: piracy (Malacca Straits, Horn of Africa, West Africa)
National Transport Environment
Agriculture ronment
•Seabed mining: Environmental impacts, expansion of areas of search
Communities, Ports & Agencies, Operators,
Local Local Local
Artisanal Harbors Authorities Authorities •Renewable energy: spread of structures

Law & Order: Piracy/Ship Law & Order: More UNCLOS

Hijackings Mandates

Sea Robbery Freedom of States to: Duty of States to:

Sea Piracy
•any illegal acts of violence or detention, or any act of depredation, committed for private ends by • Fish • Conserve living marine resources
the crew or the passengers of a private ship or a private aircraft, and directed: • Navigate • Protect and preserve marine environment
•on the high seas, against another ship or aircraft, or against persons or property on board • Cabling / pipelining • Cooperate
such ship or aircraft; • Scientific research • Control national flagged vessels and citizens
•against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; • Construct artificial • Comply with other international legal obligations
•any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of
facts making it a pirate ship or aircraft; islands • Protect objects of a historical and archaeological
•any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). • Authorize vessels to purpose found at sea
fly national flag

Law & Order: More UNCLOS Law & Order: More UNCLOS
Mandates Mandates
Right of Hot Pursuit
Right of Visit
•by the coastal State, subject to other
•Warship encountering foreign ship (except provisions on enforcement
other warship or one used for government non-
commercial service; immune ships) •by warships or military aircraft/other
ships or aircraft clearly marked and
•Only if there are grounds for suspecting that: identifiable as being on government
service and authorized to that effect
•the ship is engaged in piracy;
•the ship is engaged in the slave trade; •foreign ship / its boat/s is/are within
•the ship is engaged in unauthorized IW, AW, TS or CZ
broadcasting and the flag state of the warship
has jurisdiction under article 109 •cannot continue outside TS/CZ, unless
•the ship is without nationality; uninterrupted
•though flying a foreign flag or refusing to
show its flag, the ship is, in reality, of the same
nationality as the warship.
TAO PO •ceases upon foreign ship’s entry into its
own State or a third State TEH TAKBO!

5

Archaeological Finds
•Art. 303
Found in the CZ
•Coastal States may presume:
removal was unauthorized, and
is thus, an infringement
•Subject to the rights of
identifiable owners, the
application of the laws of
salvage, admiralty, and laws
and practices re: cultural
exchanges
Thank you!
10/16/2013
Settlement of Disputes
• Part XV, Annexes VI, VII and VIII
• Exhaustion of peaceful means
• Voluntary (Conciliation) vs. Compulsory
(Binding Dispute Settlement Procedures)
• Choose a body. (ITLOS or ICJ or Special
Arbitral Tribunal for fisheries, protection
and preservation of the marine
environment, marine scientific research, or
navigation, including pollution from vessels
and by dumping)
•Default: Arbitral Tribunal, or Special
Arbitral Tribunal if issue relates to:
•Any type of dispute
6

ANNEX B:
+ +
Summary of Marine Pollution
Laws Rayos del Sol, Bettina Jean E. | III - C
+ +
Origin of the TOVALOP
TOVALOP originated from the determination of
certain tanker owners to take constructive action
with respect to oil pollution.
 These owners recognized that marine casualties may
lead to pollution of coast lines when crude oil, fuel oil,
heavy diesel oil or lubricating oil is discharged.
 These owners were aware that traditional maritime laws
and practice do not always provide an adequate means
for reimbursing both national governments and tanker
owners (on their own initiative) who incur expenditures
to avoid or mitigate damage from such pollution.
+ +
Provisions of TOVALOP
General Provisions
A Participating Tanker Owner will reimburse national
governments for expenses reasonably incurred by them to
prevent/clean up pollution of coast lines as the result of the
negligent discharge of oil from one of his tankers.
 The tanker causing the discharge is presumed to be
negligent unless the owner can establish that discharge
occurred without the tanker's fault.
10/16/2013
TOVALOP
TANKER OWNERS VOLUNTARY AGREEMENT
CONCERNING LIABILITY FOR OIL POLLUTION
The original signatories to the agreement are B.P. Tanker Co. Ltd., Esso
Transport Co., Inc., Gulf Oil Corp., Mobil Oil Corp., Shell International
Petroleum Co. Ltd., Standard Oil Co. of California, and Texaco Inc.
Origin of the TOVALOP
 Also, traditional
maritime law and practice do not
encourage voluntary action by tanker owners, or joint
measures by governments and tanker owners, against
such pollution.
 The tanker owners have developed an Agreement
called "TOVALOP" which is available to all tanker
owners throughout the world, to:
 establish responsibility to national governments;
 assure that there will be financial capability to fulfill this
responsibility; and
 alleviate the situation
Provisions of TOVALOP
No Reimbursement of Private Parties
 The Participating Owner would not, under TOVALOP,
reimburse prevention or clean-up costs incurred by
private parties.
 However, if a national government spends money to
remove oil from privately owned coast lines, it could, in
the case of negligence of the discharging tanker, recover
these expenses from the tanker owner.
1
 10/16/2013

+ +
Provisions of TOVALOP Provisions of TOVALOP
Cost on the Part of the Negligent Tanker Reimbursement to the Tanker

 In the event of a negligent discharge of oil, where the oil TOVALOP also contains provisions for
pollutes or causes grave and imminent danger of pollution
to coast lines within the jurisdiction of a national reimbursing a tanker owner for any
government, the tanker owner involved is obligated to expenses reasonably incurred by him to
reimburse the national government concerned for oil
removal costs reasonably incurred by it: prevent or clean up pollution from a
 up to a maximum of US $100.00 per gross registered ton of the discharge of oil.
tanker discharging the oil
 or US $10,000,000, whichever is lesser.
 These provisions are designed to encourage a
tanker owner to take prompt action to remove or
 Ifthe owner himself also helps remove the oil, his costs in
effect result in prorating the government's claim where the
mitigate pollution damage.
combined costs exceed these limits.

+ +
Provisions of TOVALOP Provisions of TOVALOP
Scope of Damage Covered Administration

TOVALOP applies only to physical  TOVALOP will be administered by The International

Tanker Owners Pollution Federation Limited and each
contamination to land adjoining waters tanker owner who becomes a party to TOVALOP would be
navigated by tankers including structures a member of this Federation.
built on this land.  TOVALOP requires each tanker owner who becomes a
 It doesn't cover fire or explosion damage, party to establish and maintain financial capability to fulfill
consequential damage, or ecological his contractual obligations described above.
 The International Tanker Indemnity Association Limited will provide
damage. insurance coverage for all tankers owned by the Parties to TOVALOP,
and thus assure that they would be capable of fulfilling their financial
commitments.

+ +
Provisions of TOVALOP Provisions of TOVALOP
Membership On Dispute Settlement

 TAVALOP is structured so that all tanker owners of the
world can at any time become participants.
 All tanker tonnage (including barges capable of seagoing service) owned or bareboat
chartered by a party to the Agreement will be covered, excluding LNG and LPG
carriers.
 A national government can enforce the liability of a tanker owner
who is a party to TOVALOP through arbitation under the Rules of the
International Chamber of Commerce.
 This should avoid the problems of establishing jurisdiction and effecting
collection.

 Tanker owners owning at least 50%, of the tankers of the

world (excluding tankers owned by a government or
government agency and tankers of under 5,000 d.w.t.) as
measured by deadweight tonnage must become parties
before the principal obligations of an owner under
TOVALOP come into existence and TOVALOP itself
becomes fully effective.

2
 10/16/2013

+ +
Summary of Provisions
In summary, TOVALOP does the following:

(1 ) Encourages immediate remedial action by Participating Tanker

Owners in the event of a discharge of oil.
CRISTAL
(2) Assures financial capability of Participating Tanker Owners to fulfill
their obligations under TOVALOP through insurance coverage.

(3) Avoids jurisdictional problems under existing maritime law and

practice.

(4) Places on tanker owner the burden of disproving negligence.

CONTRACT REGARDING AN INTERIM SUPPLEMENT TO
(5) Provides a national government with machinery for making valid TANKER LIABILITY FOR OIL POLLUTION
claims notwithstanding the fact that such government might not, under
international or local law, have a legal obligation to remove oil Parties to the Contract are various oil companies and the Oil Companies
discharged from a tanker or a legal right to recover removal expenses. Institute for Marine Pollution Compensation, Ltd. (an entity organized in
Bermuda)

+ +
Preamble
Parties recognize that marine casualties involving tankers carrying bulk oil
cargoes can cause extensive pollution damage on the escape or discharge of
oil into the sea.

 Parties believe that by increasing the responsibility of tanker

CIVIL

owners, the occurrence of incidents can be reduced.

By ratification of the International Convention on Civil

LIABILITY
Liability for Oil Pollution Damage – CLC), persons who
sustain pollution damage for which a tanker owner is liable
CONVENTION
would have available supplemental compensation beyond
limits established.

International Convention on Civil Liability for Oil Pollution

Damage (1992 Protocol)

+ +
What it Does Where it Applies

 International Maritime Organization Protocol of 1992 amended the
International Convention on Civil Liability for Oil Pollution Damage of
1969.
 Protocol affirmed the importance of maintaining the viability of the
international oil pollution liability and compensation system,
 Protocol is a response to the the need to ensure the entry the content of
the 1984 Protocol, which has an improved scope, as soon as possible.
 Protocol enacted special provisions necessary in connection with the
introduction of amendments to the International Convention on the
Establishment of an International Fund for Compensation for Oil Pollution
Damage, 1971,
 (a) to pollution damage caused:
 (i) in the territory, including the territorial sea, of a Contracting State,
and
 (ii) in the exclusive economic zone of a Contracting State, established in
accordance with international law, or, if a Contracting State has not
established such a zone, in an area beyond and adjacent to the territorial
sea of that State determined by that State in accordance with
international law and extending not more than 200 nautical miles from
the baselines from which the breadth of its territorial sea is measured;
 (b) to preventive measures, wherever taken, to prevent or minimize
such damage.

3
 10/16/2013

+ +
Pollution Damage - Definition
INTERNATIONAL
FUND  "Pollution damage" means:
 (a) loss or damage caused outside the ship by
CONVENTION contamination resulting from the escape or discharge
of oil from the ship, wherever such escape or discharge
may occur, provided that compensation for impairment
of the environment other than loss of profit from such
impairment shall be limited to costs of reasonable
International Convention on the Establishment of an measures of reinstatement actually undertaken or to be
International Fund for Compensation for Oil Pollution undertaken;
Damage  (b) the costs of preventive measures and further loss or
damage caused by preventive measures.

+ +
The Fund’s Aims Comparison of Compensation Limit

 a)to provide compensation for pollution

damage to the extent that the protection
afforded by the 1992 Liability Convention is
inadequate;
 (b)to give effect to the related purposes set out
in this Convention.