384
non-UNCLOS issues and, consequently, apply non-UNCLOS law, is not yet entirely
settled.
Recent case law has prompted a number of commentators to address the matter
wondering whether an “expansion” of UNCLOS Tribunals’ jurisdiction would be
possible, desirable or not.
1
The purpose of this paper is to examine one of the different potential gateways through which such alleged expansion could take place, that
is the power to make incidental determinations over non-UNCLOS issues.
Even if the issue relating to such power has gained relevance with respect to
those disputes that “necessarily involve concurrent consideration of any unsettled
dispute concerning sovereignty”
2
(so called “mixed disputes”), the problem of its
scope and effects can be generalised. Potentially, in fact, it involves all cases where
incidental questions covering non-UNCLOS issues may arise—such as issues of
territorial sovereignty, but also use of force, environmental law, etc.—thus requiring
the application of external customary or treaty norms.
After some preliminary remarks on the interplay between jurisdiction and applicable law in UNCLOS dispute settlement proceedings (Sect. 2), this paper discusses
the legal framework within which UNCLOS tribunals can make incidental determinations over issues which lie beyond the scope of the Convention. In particular, the
questions of the basis of the jurisdiction over incidental issues (Sect. 3), the scope
and limits of such jurisdiction (Sect. 4) and the legal effects of incidental determinations (Sect. 5) will be addressed. Finally, some concluding remarks will be made
(Sect. 6).
2 Jurisdiction and Applicable Law in UNCLOS Dispute
Settlement Proceedings
In order to analyse the power of UNCLOS Tribunals to make incidental determinations over non-UNCLOS issues, the interplay between jurisdiction and applicable
law in UNCLOS dispute settlement proceedings should be preliminarily assessed.
While Art. 288(1) confines the jurisdiction of UNCLOS Tribunals to any dispute
concerning the interpretation and application of the Convention, Art. 293(1) sets
forth the applicable law in the following terms: “[a] court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention”. Thus, even if jurisdiction is
limited to UNCLOS disputes, the law applicable to such disputes is not circumscribed to the Convention but comprises all other rules of international law not
incompatible with the Convention.
3
The purpose of Art. 293(1) is to avoid that the
1 Talmon (2016), Tzeng (2016a), Klein (2016, 2017) and Parlett (2017).
2 Art. 298(1)(a)(i) of the Convention.
3 On Art. 293(1) see Treves (2006a) and Wood (2007).
L. Marotti
non-UNCLOS issues and, consequently, apply non-UNCLOS law, is not yet entirely
settled.
Recent case law has prompted a number of commentators to address the matter
wondering whether an “expansion” of UNCLOS Tribunals’ jurisdiction would be
possible, desirable or not.
1
The purpose of this paper is to examine one of the different potential gateways through which such alleged expansion could take place, that
is the power to make incidental determinations over non-UNCLOS issues.
Even if the issue relating to such power has gained relevance with respect to
those disputes that “necessarily involve concurrent consideration of any unsettled
dispute concerning sovereignty”
2
(so called “mixed disputes”), the problem of its
scope and effects can be generalised. Potentially, in fact, it involves all cases where
incidental questions covering non-UNCLOS issues may arise—such as issues of
territorial sovereignty, but also use of force, environmental law, etc.—thus requiring
the application of external customary or treaty norms.
After some preliminary remarks on the interplay between jurisdiction and applicable law in UNCLOS dispute settlement proceedings (Sect. 2), this paper discusses
the legal framework within which UNCLOS tribunals can make incidental determinations over issues which lie beyond the scope of the Convention. In particular, the
questions of the basis of the jurisdiction over incidental issues (Sect. 3), the scope
and limits of such jurisdiction (Sect. 4) and the legal effects of incidental determinations (Sect. 5) will be addressed. Finally, some concluding remarks will be made
(Sect. 6).
2 Jurisdiction and Applicable Law in UNCLOS Dispute
Settlement Proceedings
In order to analyse the power of UNCLOS Tribunals to make incidental determinations over non-UNCLOS issues, the interplay between jurisdiction and applicable
law in UNCLOS dispute settlement proceedings should be preliminarily assessed.
While Art. 288(1) confines the jurisdiction of UNCLOS Tribunals to any dispute
concerning the interpretation and application of the Convention, Art. 293(1) sets
forth the applicable law in the following terms: “[a] court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention”. Thus, even if jurisdiction is
limited to UNCLOS disputes, the law applicable to such disputes is not circumscribed to the Convention but comprises all other rules of international law not
incompatible with the Convention.
3
The purpose of Art. 293(1) is to avoid that the
1 Talmon (2016), Tzeng (2016a), Klein (2016, 2017) and Parlett (2017).
2 Art. 298(1)(a)(i) of the Convention.
3 On Art. 293(1) see Treves (2006a) and Wood (2007).
L. Marotti