389
If viewed from this perspective and put in context with other relevant judicial
practice, this line of cases then reflects the uncertainty within UCLOS dispute settlement proceedings—as well as in international adjudication in general—as to the
source, the scope and the effects of incidental jurisdiction over “external” issues. In
the following Sections these aspects will be explored in turn.
3 The Power to Make Incidental Determinations
Over Substantive Issues
Before adopting a decision on the merits of a particular dispute, international courts
and tribunals may make a number of incidental determinations within the framework of their incidental jurisdiction (to which usually correspond specific incidental
proceedings, such as provisional measures, intervention, preliminary objections or
counterclaims proceedings). While these determinations cover procedural issues
which, broadly speaking, are incidental or supplemental to the main proceedings,
incidental determinations to which this paper is devoted concern instead substantive
issues incidental to the merits of a dispute.
As intended here, substantive issues are those issues which call for the application of primary norms having an “autonomous substantive content”, in the sense
that they do not relate to the interpretation or application of another primary norms,
but stand on their own and are likely to sustain an independent claim.
27
As seen,
when in the process of reaching a decision over the merits of a dispute other primary
rules of international law are applied, they are usually employed in a subsidiary or
indirect manner, that is for reasons of interpretation or strict reasons of application
(i.e. express renvoi to external norms) of the principal norm whose interpretation or
application is disputed. However, the reasons of interpretation and the strict reasons
of application are not the only reasons which may require the application of primary
norms. In order to deal with incidental substantive issues, external primary norms
having an “autonomous substantive content” may be directly applied.
The question then is whether, and to what extent, a power, meaning an “incidental jurisdiction” exists in order to decide over incidental issues and, therefore, to
apply external primary norms for determining such issues. This question arises in a
number of different areas of international law and before several international judicial bodies.
28
27 Mitchell and Heaton (2010), pp. 574–575.
28 Within the framework of the WTO dispute settlement, the question of the incidental jurisdiction
over questions of substance of panels and the Appellate Body has been particularly debated. See
for discussion and references to case law, Pauwelyn and Salles (2009), pp. 99–102. As far as
investment arbitration is concerned, see Prislan (2013) p. 455 ff. In international criminal adjudication, the question of incidental jurisdiction has been raised with respect to International Criminal
Court’s power to determine whether disputed territory belongs to a Party (such as Palestine) in
order to trigger its jurisdiction. See Kontorovich (2013), and Ronen (2014).
Between Consent and Effectiveness: Incidental Determinations and the Expansion…
If viewed from this perspective and put in context with other relevant judicial
practice, this line of cases then reflects the uncertainty within UCLOS dispute settlement proceedings—as well as in international adjudication in general—as to the
source, the scope and the effects of incidental jurisdiction over “external” issues. In
the following Sections these aspects will be explored in turn.
3 The Power to Make Incidental Determinations
Over Substantive Issues
Before adopting a decision on the merits of a particular dispute, international courts
and tribunals may make a number of incidental determinations within the framework of their incidental jurisdiction (to which usually correspond specific incidental
proceedings, such as provisional measures, intervention, preliminary objections or
counterclaims proceedings). While these determinations cover procedural issues
which, broadly speaking, are incidental or supplemental to the main proceedings,
incidental determinations to which this paper is devoted concern instead substantive
issues incidental to the merits of a dispute.
As intended here, substantive issues are those issues which call for the application of primary norms having an “autonomous substantive content”, in the sense
that they do not relate to the interpretation or application of another primary norms,
but stand on their own and are likely to sustain an independent claim.
27
As seen,
when in the process of reaching a decision over the merits of a dispute other primary
rules of international law are applied, they are usually employed in a subsidiary or
indirect manner, that is for reasons of interpretation or strict reasons of application
(i.e. express renvoi to external norms) of the principal norm whose interpretation or
application is disputed. However, the reasons of interpretation and the strict reasons
of application are not the only reasons which may require the application of primary
norms. In order to deal with incidental substantive issues, external primary norms
having an “autonomous substantive content” may be directly applied.
The question then is whether, and to what extent, a power, meaning an “incidental jurisdiction” exists in order to decide over incidental issues and, therefore, to
apply external primary norms for determining such issues. This question arises in a
number of different areas of international law and before several international judicial bodies.
28
27 Mitchell and Heaton (2010), pp. 574–575.
28 Within the framework of the WTO dispute settlement, the question of the incidental jurisdiction
over questions of substance of panels and the Appellate Body has been particularly debated. See
for discussion and references to case law, Pauwelyn and Salles (2009), pp. 99–102. As far as
investment arbitration is concerned, see Prislan (2013) p. 455 ff. In international criminal adjudication, the question of incidental jurisdiction has been raised with respect to International Criminal
Court’s power to determine whether disputed territory belongs to a Party (such as Palestine) in
order to trigger its jurisdiction. See Kontorovich (2013), and Ronen (2014).
Between Consent and Effectiveness: Incidental Determinations and the Expansion…