383
© Springer Nature Switzerland AG 2019
A. Del Vecchio, R. Virzo (eds.), Interpretations of the United Nations
Convention on the Law of the Sea by International Courts and Tribunals,
https://doi.org/10.1007/978-3-030-10773-4_19
Between Consent and Effectiveness:
Incidental Determinations
and the Expansion of the Jurisdiction
of UNCLOS Tribunals
Loris Marotti
Abstract This paper discusses the legal framework within which the jurisdiction
ratione materiae of tribunals established under UNCLOS Part XV can be extended,
at least incidentally, over non-UNCLOS issues. The analysis illustrates that, whilst
UNCLOS Tribunals—like other international tribunals—have an incidental jurisdiction to determine incidental issues beyond the scope of their principal jurisdiction, a consistent and well-developed doctrine relating to such incidental jurisdiction
is still lacking. The Chagos award provides some hints about the features of this
jurisdiction, but essentially refers to judicial assessments which remain to a large
extent discretionary. The same holds true when it comes to the determination of the
legal effects of incidental determinations over external issues. In this paper it is
argued that further clarification about such prominent aspects of the adjudication of
law of sea disputes is needed. This would help achieving a better balance between
the principle of consent and the principle of effectiveness in the exercise of Part XV
jurisdiction.
1 Introduction
Courts and tribunals constituted under Part XV of the United Nations Convention
on the Law of the Sea (UNCLOS Tribunals) regularly face the need of clarifying the
scope of their compulsory jurisdiction once seised of a dispute. Although Art.
288(1) is apparently clear in confining the subject-matter jurisdiction to “any dispute concerning the interpretation and application of the Convention”, several issues
as to the actual boundaries of UNCLOS Tribunals’ jurisdiction still remain open, if
not inconsistently addressed in case law. Notably, the question whether, and to what
extent, UNCLOS Tribunals can, at least incidentally, also exercise jurisdiction over
L. Marotti (*)
University of Milan, Department of International, Legal, Historical and Political Studies,
Milan, Italy
e-mail: loris.marotti@unimi.it
© Springer Nature Switzerland AG 2019
A. Del Vecchio, R. Virzo (eds.), Interpretations of the United Nations
Convention on the Law of the Sea by International Courts and Tribunals,
https://doi.org/10.1007/978-3-030-10773-4_19
Between Consent and Effectiveness:
Incidental Determinations
and the Expansion of the Jurisdiction
of UNCLOS Tribunals
Loris Marotti
Abstract This paper discusses the legal framework within which the jurisdiction
ratione materiae of tribunals established under UNCLOS Part XV can be extended,
at least incidentally, over non-UNCLOS issues. The analysis illustrates that, whilst
UNCLOS Tribunals—like other international tribunals—have an incidental jurisdiction to determine incidental issues beyond the scope of their principal jurisdiction, a consistent and well-developed doctrine relating to such incidental jurisdiction
is still lacking. The Chagos award provides some hints about the features of this
jurisdiction, but essentially refers to judicial assessments which remain to a large
extent discretionary. The same holds true when it comes to the determination of the
legal effects of incidental determinations over external issues. In this paper it is
argued that further clarification about such prominent aspects of the adjudication of
law of sea disputes is needed. This would help achieving a better balance between
the principle of consent and the principle of effectiveness in the exercise of Part XV
jurisdiction.
1 Introduction
Courts and tribunals constituted under Part XV of the United Nations Convention
on the Law of the Sea (UNCLOS Tribunals) regularly face the need of clarifying the
scope of their compulsory jurisdiction once seised of a dispute. Although Art.
288(1) is apparently clear in confining the subject-matter jurisdiction to “any dispute concerning the interpretation and application of the Convention”, several issues
as to the actual boundaries of UNCLOS Tribunals’ jurisdiction still remain open, if
not inconsistently addressed in case law. Notably, the question whether, and to what
extent, UNCLOS Tribunals can, at least incidentally, also exercise jurisdiction over
L. Marotti (*)
University of Milan, Department of International, Legal, Historical and Political Studies,
Milan, Italy
e-mail: loris.marotti@unimi.it