385
Convention be placed in “artificial isolation” by interpreters.
4
In other words, as
held by an Annex VII Tribunal in the Arctic Sunrise Arbitration, Art. 293(1) “ensures
that a tribunal can give full effect to the provisions of the Convention”.
5
Indeed, other rules of international law can and should be applied by UNCLOS
Tribunals in at least two undisputed cases. The first case is when tribunals have to
rely upon secondary or foundational norms, such as general principles of procedure,
the law of treaties, the rules on state responsibility or diplomatic protection.
6
UNCLOS Tribunals have frequently applied this kind of secondary norms.
7
The
second well-established situation is when reference is made to primary norms which
are necessary to assist the interpretation and application of a Convention’s provision. In this case, tribunals can look at external primary norms only for “reasons of
interpretation” of that provision—such as where resort to primary norms is made
through the gate of Art. 31(3)(c) of the 1969 Vienna Convention on the Law of
Treaties
8
—or for “strict reasons of application”, namely where the same conventional norm refers to external norms.
9
The application of external rules in these cases is undisputed and does not entail
an “expansion” of the jurisdiction of UNCLOS tribunals. Jurisdiction and applicable law remain two different concepts which relate to two logically (and chronologically) distinct moments of the exercise of the judicial function.
10
Courts or tribunals
must first determine whether they have jurisdiction over a dispute, that is whether
they have “the capacity […] to decide a particular case with final and binding
force”.
11
Only once the jurisdiction is established, a court or tribunal can look at the
law applicable in order to judicially settle the dispute. The wording of Art. 293(1),
after all, implicitly recognizes this logical (and chronological) relation between the
4 Schmalenbach (2008), p. 1051.
5 PCA, Arctic Sunrise Arbitration (Netherlands v. Russia), Award on the Merits, 14 August 2015,
para. 188. See also PCA, The Duzgit Integrity Arbitration (Malta v. São Tomé and Príncipe),
Award, 5 September 2016, para. 208.
6 Arctic Sunrise Arbitration, para. 190. See Papadaki (2014).
7 See e.g. ITLOS, Request for Advisory Opinion Submitted by the Sub-Regional Fisheries
Commission, Advisory Opinion, 2 April 2015, where the ITLOS held that, in order to examine the
questions submitted, it would have been “guided by relevant rules of international law on responsibility of States for internationally wrongful acts” (para. 143).
8 See e.g. PCA, South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and
Admissibility, 29 October 2015, para. 176: “[t]he Tribunal is satisfied that Article 293(1) of the
Convention, together with Article 31(3) of the Vienna Convention on the Law of Treaties, enables
it in principle to consider the relevant provisions of the CBD for the purposes of interpreting the
content and standard of Articles 192 and 194 of the Convention”. See also para. 282.
9 See e.g. Art. 295 of the Convention referring to the rule on the exhaustion of local remedies applicable “where this is required by international law”. For other references see Tzeng (2016a), p. 535
ff., and Parlett (2017), p. 291 ff.
10 Bartels (2011), Forteau (2013), p. 435 ff.; Papadaki (2014), pp. 566–569. See also the Separate
opinion by Judge ad hoc Kreća appended to the ICJ’s judgment in the case Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), 3
February 2015, paras 69–73.
11 Rosenne (2006), p. 524.
Between Consent and Effectiveness: Incidental Determinations and the Expansion…
Convention be placed in “artificial isolation” by interpreters.
4
In other words, as
held by an Annex VII Tribunal in the Arctic Sunrise Arbitration, Art. 293(1) “ensures
that a tribunal can give full effect to the provisions of the Convention”.
5
Indeed, other rules of international law can and should be applied by UNCLOS
Tribunals in at least two undisputed cases. The first case is when tribunals have to
rely upon secondary or foundational norms, such as general principles of procedure,
the law of treaties, the rules on state responsibility or diplomatic protection.
6
UNCLOS Tribunals have frequently applied this kind of secondary norms.
7
The
second well-established situation is when reference is made to primary norms which
are necessary to assist the interpretation and application of a Convention’s provision. In this case, tribunals can look at external primary norms only for “reasons of
interpretation” of that provision—such as where resort to primary norms is made
through the gate of Art. 31(3)(c) of the 1969 Vienna Convention on the Law of
Treaties
8
—or for “strict reasons of application”, namely where the same conventional norm refers to external norms.
9
The application of external rules in these cases is undisputed and does not entail
an “expansion” of the jurisdiction of UNCLOS tribunals. Jurisdiction and applicable law remain two different concepts which relate to two logically (and chronologically) distinct moments of the exercise of the judicial function.
10
Courts or tribunals
must first determine whether they have jurisdiction over a dispute, that is whether
they have “the capacity […] to decide a particular case with final and binding
force”.
11
Only once the jurisdiction is established, a court or tribunal can look at the
law applicable in order to judicially settle the dispute. The wording of Art. 293(1),
after all, implicitly recognizes this logical (and chronological) relation between the
4 Schmalenbach (2008), p. 1051.
5 PCA, Arctic Sunrise Arbitration (Netherlands v. Russia), Award on the Merits, 14 August 2015,
para. 188. See also PCA, The Duzgit Integrity Arbitration (Malta v. São Tomé and Príncipe),
Award, 5 September 2016, para. 208.
6 Arctic Sunrise Arbitration, para. 190. See Papadaki (2014).
7 See e.g. ITLOS, Request for Advisory Opinion Submitted by the Sub-Regional Fisheries
Commission, Advisory Opinion, 2 April 2015, where the ITLOS held that, in order to examine the
questions submitted, it would have been “guided by relevant rules of international law on responsibility of States for internationally wrongful acts” (para. 143).
8 See e.g. PCA, South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and
Admissibility, 29 October 2015, para. 176: “[t]he Tribunal is satisfied that Article 293(1) of the
Convention, together with Article 31(3) of the Vienna Convention on the Law of Treaties, enables
it in principle to consider the relevant provisions of the CBD for the purposes of interpreting the
content and standard of Articles 192 and 194 of the Convention”. See also para. 282.
9 See e.g. Art. 295 of the Convention referring to the rule on the exhaustion of local remedies applicable “where this is required by international law”. For other references see Tzeng (2016a), p. 535
ff., and Parlett (2017), p. 291 ff.
10 Bartels (2011), Forteau (2013), p. 435 ff.; Papadaki (2014), pp. 566–569. See also the Separate
opinion by Judge ad hoc Kreća appended to the ICJ’s judgment in the case Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), 3
February 2015, paras 69–73.
11 Rosenne (2006), p. 524.
Between Consent and Effectiveness: Incidental Determinations and the Expansion…