388
applicable to the conduct of the parties in the course of dispute settlement proceedings under Part XV”. However, the Tribunal went on stating that this duty is a principle of international law which “constitutes one of the ‘other rules of international
law not incompatible with this Convention’ to which the Tribunal may have
recourse”. This finding led the Tribunal to declare in the dispositif that China
“breached its obligations pursuant to Articles 279, 296, and 300 of the Convention,
as well as pursuant to general international law”.
23
Admittedly, in this case the
expansion of the jurisdiction through Art. 293(1) appears less problematic than the
other cases referred to above. The Tribunal apparently conceived the breached obligations under general international law as being incorporated in the Convention.
However, like in the other three decisions mentioned, the reference to general international law in the operative part of the award clearly suggests the Tribunal’s inclination to recognize and expanding effect to Art. 293(1).
24
This line of cases has been criticized since it would be grounded on an improper
use of Art. 293(1) and would not align with the “cardinal distinction” between jurisdiction and applicable law.
25
In light of what has been just observed about this distinction, one cannot but share these criticisms. However, it does not seem appropriate
to confine the analysis on the function of Art. 293(1) and on the proper role of
applicable law clauses in international dispute settlement proceedings. This seems
to be an excessively narrow perspective. The abovementioned judicial practice
raises a broader issue that concerns the power of international tribunals to make
incidental determinations. Thus, the central issue is not so much that of the applicable law, but rather that of the extent of a tribunal’s jurisdiction.
Indeed, at a closer look, these decisions have three features in common. First, in
addition to the principal dispute, they address also incidental issues relating to questions not governed by the Convention, such as the use of force or the duty to refrain
from aggravating or extending the pending dispute.
26
Secondly, as seen, these decisions seem to draw the power to deal with such incidental disputes from the relevant
applicable law clause, that is Art. 293(1). Finally, they include the respective determinations on incidental disputes in the dispositif, postulating therewith the final and
binding effect of such determinations.
23 Ibidem, para. 1203(B)(16).
24 See Parlett (2017), pp. 289–290.
25 Bartels (2011), pp. 128–130; see also Boyle and Harrison (2013), pp. 254–256, and Tzeng
(2016b).
26 See Wood (2007), p. 364, referring to SAIGA (No.2). In Guyana v. Suriname, the Annex VII tribunal highlighted the “incidental” nature of the issues of threat or use of force: “[t]his dispute has
as its principal concern the determination of the course of the maritime boundary between the two
Parties – Guyana and Suriname. The Parties have, as the history of the dispute testifies, sought for
decades to reach agreement on their common maritime boundary. The CGX incident of 3 June
2000, whether designated as a ‘border incident’ or as ‘law enforcement activity’, may be considered incidental to the real dispute between the Parties. The Tribunal, therefore, finds that in the
particular circumstances, Guyana was not under any obligation to engage in a separate set of
exchanges of views with Suriname on issues of threat or use of force. These issues can be considered as being subsumed within the main dispute” (para. 410, emphasis added).
L. Marotti
applicable to the conduct of the parties in the course of dispute settlement proceedings under Part XV”. However, the Tribunal went on stating that this duty is a principle of international law which “constitutes one of the ‘other rules of international
law not incompatible with this Convention’ to which the Tribunal may have
recourse”. This finding led the Tribunal to declare in the dispositif that China
“breached its obligations pursuant to Articles 279, 296, and 300 of the Convention,
as well as pursuant to general international law”.
23
Admittedly, in this case the
expansion of the jurisdiction through Art. 293(1) appears less problematic than the
other cases referred to above. The Tribunal apparently conceived the breached obligations under general international law as being incorporated in the Convention.
However, like in the other three decisions mentioned, the reference to general international law in the operative part of the award clearly suggests the Tribunal’s inclination to recognize and expanding effect to Art. 293(1).
24
This line of cases has been criticized since it would be grounded on an improper
use of Art. 293(1) and would not align with the “cardinal distinction” between jurisdiction and applicable law.
25
In light of what has been just observed about this distinction, one cannot but share these criticisms. However, it does not seem appropriate
to confine the analysis on the function of Art. 293(1) and on the proper role of
applicable law clauses in international dispute settlement proceedings. This seems
to be an excessively narrow perspective. The abovementioned judicial practice
raises a broader issue that concerns the power of international tribunals to make
incidental determinations. Thus, the central issue is not so much that of the applicable law, but rather that of the extent of a tribunal’s jurisdiction.
Indeed, at a closer look, these decisions have three features in common. First, in
addition to the principal dispute, they address also incidental issues relating to questions not governed by the Convention, such as the use of force or the duty to refrain
from aggravating or extending the pending dispute.
26
Secondly, as seen, these decisions seem to draw the power to deal with such incidental disputes from the relevant
applicable law clause, that is Art. 293(1). Finally, they include the respective determinations on incidental disputes in the dispositif, postulating therewith the final and
binding effect of such determinations.
23 Ibidem, para. 1203(B)(16).
24 See Parlett (2017), pp. 289–290.
25 Bartels (2011), pp. 128–130; see also Boyle and Harrison (2013), pp. 254–256, and Tzeng
(2016b).
26 See Wood (2007), p. 364, referring to SAIGA (No.2). In Guyana v. Suriname, the Annex VII tribunal highlighted the “incidental” nature of the issues of threat or use of force: “[t]his dispute has
as its principal concern the determination of the course of the maritime boundary between the two
Parties – Guyana and Suriname. The Parties have, as the history of the dispute testifies, sought for
decades to reach agreement on their common maritime boundary. The CGX incident of 3 June
2000, whether designated as a ‘border incident’ or as ‘law enforcement activity’, may be considered incidental to the real dispute between the Parties. The Tribunal, therefore, finds that in the
particular circumstances, Guyana was not under any obligation to engage in a separate set of
exchanges of views with Suriname on issues of threat or use of force. These issues can be considered as being subsumed within the main dispute” (para. 410, emphasis added).
L. Marotti