A2015 - Roque - PIL Review Supplement 1
A2015 - Roque - PIL Review Supplement 1
138, which is a
different case.)
Supplement # 1
Correction, p. 16: SAUDI ARABIA v. ARABIAN
Supplement, p. 7: Definition of Armed Attack in AMERICAN OIL COMPANY (ARAMCO)
CASE CONCERNING MILITARY AND PARAMILITARY
ACTIVITIES IN AND AGAINST NICARAGUA …which was previously given the exclusive right to
(NICARAGUA v. USA) transport oil which it had extracted from its concession
area in Saudi Arabia.
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, Supplement, p. 56-57: CASE CONCERNING PEDRA
irregulars or mercenaries, which carry out acts of armed BRANCA/PULAU BATU PUTEH, MIDDLE ROCKS AND
SOUTH LEDGE (MALAYSIA v. SINGAPORE)
force against another State of such gravity as to amount to
an actual armed attack conducted by regular forces or its
substantial involvement therein.” (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
Remember:
[Middle Rocks and South Ledge] may be more relevant. To
Action by regular armed forces; OR
wit:)
Sending of armed groups, whose actions of such
gravity that it amounts to action by regular
Singapore: Middle Rocks and South Ledge are
armed forces.
dependencies of the island of Pedra Branca
They form geographically and
“The Court does not believe that the concept of ‘armed
morphologically a single group of
attack’ includes not only acts by armed bands where such
maritime features;
acts occur on a significant scale, but also assistance to
Fate of the principal involves the rest –
rebels in the form of the provision of weapons or logistical
since Singapore exercises sovereignty
or other support.” (verbatim from the case text, as it
over the latter, such features must be
appears in Reviewer, p. 7)
awarded to them as well.
Clarification: this statement reeks of poor
sentence construction, which inevitably confuses Malaysia: Malaysia exercised sovereignty over Middle
the reader as to what it is trying to say. (feeling Rocks and South Ledge
Prof. Balane) Granted oil concessions;
The Court ruled that assistance in the form of Covered by its Fisheries Act;
the provision of weapons or logistical or other Singapore failed to protest.
support is NOT INCLUDED in the concept of
“armed attack.” Middle Rocks should remain with Malaysia.
HOWEVER, it “may be regarded as a threat or
use of force, or amount to intervention in the While particular circumstances concerning Pedra Branca
internal or external affairs of other States” in formed the basis of the passing of its title to Singapore,
itself. the same do not apply to other maritime features.
ANNEX A :
Nakaligo ka na ba sa dagat ng
basura?
Marine Pollution
Maria Emilynda Jeddahlyn Pia V. Benosa III-C
pipes discharging
directly into marine
waters
sewage, industrial,
chemical and food
processing wastes
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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
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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.
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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
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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: 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!
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Thank you!
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ANNEX B:
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TOVALOP
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Origin of the TOVALOP Origin of the TOVALOP
TOVALOP originated from the determination of
certain tanker owners to take constructive action
with respect to oil pollution. Also, traditional
maritime law and practice do not
These owners recognized that marine casualties may encourage voluntary action by tanker owners, or joint
lead to pollution of coast lines when crude oil, fuel oil, measures by governments and tanker owners, against
heavy diesel oil or lubricating oil is discharged. such pollution.
These owners were aware that traditional maritime laws The tanker owners have developed an Agreement
and practice do not always provide an adequate means called "TOVALOP" which is available to all tanker
for reimbursing both national governments and tanker owners throughout the world, to:
owners (on their own initiative) who incur expenditures establish responsibility to national governments;
to avoid or mitigate damage from such pollution. assure that there will be financial capability to fulfill this
responsibility; and
alleviate the situation
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Provisions of TOVALOP Provisions of TOVALOP
General Provisions No Reimbursement of Private Parties
A Participating Tanker Owner will reimburse national The Participating Owner would not, under TOVALOP,
governments for expenses reasonably incurred by them to reimburse prevention or clean-up costs incurred by
prevent/clean up pollution of coast lines as the result of the private parties.
negligent discharge of oil from one of his tankers. However, if a national government spends money to
remove oil from privately owned coast lines, it could, in
The tanker causing the discharge is presumed to be the case of negligence of the discharging tanker, recover
negligent unless the owner can establish that discharge these expenses from the tanker owner.
occurred without the tanker's fault.
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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.
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Provisions of TOVALOP Provisions of TOVALOP
Scope of Damage Covered Administration
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Provisions of TOVALOP Provisions of TOVALOP
Membership On Dispute Settlement
TAVALOP is structured so that all tanker owners of the A national government can enforce the liability of a tanker owner
world can at any time become participants. who is a party to TOVALOP through arbitation under the Rules of the
International Chamber of Commerce.
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 This should avoid the problems of establishing jurisdiction and effecting
carriers.
collection.
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Summary of Provisions
In summary, TOVALOP does the following:
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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.
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What it Does Where it Applies
International Maritime Organization Protocol of 1992 amended the (a) to pollution damage caused:
International Convention on Civil Liability for Oil Pollution Damage of (i) in the territory, including the territorial sea, of a Contracting State,
1969. and
(ii) in the exclusive economic zone of a Contracting State, established in
Protocol affirmed the importance of maintaining the viability of the
accordance with international law, or, if a Contracting State has not
international oil pollution liability and compensation system,
established such a zone, in an area beyond and adjacent to the territorial
sea of that State determined by that State in accordance with
Protocol is a response to the the need to ensure the entry the content of
international law and extending not more than 200 nautical miles from
the 1984 Protocol, which has an improved scope, as soon as possible. the baselines from which the breadth of its territorial sea is measured;
Protocol enacted special provisions necessary in connection with the
(b) to preventive measures, wherever taken, to prevent or minimize
introduction of amendments to the International Convention on the
such damage.
Establishment of an International Fund for Compensation for Oil Pollution
Damage, 1971,
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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.
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The Fund’s Aims Comparison of Compensation Limit