390
As far as the source of such “incidental jurisdiction” is concerned, there seems to
be a general understanding among international legal scholars that the power to
make incidental determinations of the kind discussed here constitutes an inherent
component of the principal jurisdiction that stems from the effective interpretation
of the jurisdiction-conferring instrument.
29
The power to make incidental determinations over questions antecedent to the merits of a dispute falls within what has
been defined as “extension of jurisdiction by necessary implication”.
30
To give full
effect to its principal jurisdiction, an international tribunal must have the capacity to
decide any anterior issues whose determination is necessary for the exercise of the
principal jurisdiction over the main dispute.
Yet specific statements concerning this kind of jurisdiction in the case law of
international courts and tribunals are rare. The Permanent Court of International
Justice (PCIJ) referred quite explicitly to it only in two cases.
31
In Mavrommatis
Palestine Concessions, while the jurisdiction did not cover also the Protocol of
Lausanne, but was only limited to disputes relating to the interpretation and application of the 1922 Mandate for Palestine, the Court held that it had “jurisdiction to
apply the Protocol of Lausanne in so far as this is made necessary by Article II of
the Mandate”.
32
In German Interests in Polish Upper Silesia Case, the PCIJ held
that “the interpretation of other international agreements is indisputably within the
competence of the Court if such interpretation must be regarded as incidental to a
decision on point in regard to which it has jurisdiction”.
33
Most recently, in its 2015 judgment delivered in Croatia v. Serbia, the
International Court of Justice (ICJ) reaffirmed that its jurisdiction ratione materiae
under Art. IX of the Genocide Convention could not entail the power to rule on
alleged breaches of other obligations under international law, not amounting to
genocide, particularly those protecting human rights in armed conflict.
34
Yet the
Court went further stating that this jurisdictional limitation did not prevent it “from
considering, in its reasoning, whether a violation of international humanitarian law
or international human rights law has occurred to the extent that this is relevant for
the Court’s determination of whether or not there has been a breach of an obligation
under the Genocide Convention”.
35
29 Shihata (1965), p. 194. In legal literature, references to this power can also be found in Cheng
(1953), pp. 266–267, and Salles (2014), p. 114 ff. See also the references in Tzeng (2016a),
p. 557 ff.
30 Shihata (1965), p. 195.
31 For earlier arbitral practice see also Cheng (1953), pp. 266–267.
32 The Court acknowledged that “for the purpose of the settlement of a dispute of this kind the
extent and effect of the international obligations arising out of Protocol XII must be ascertained”.
33 PCIJ, Certain German Interests in Polish Upper Silesia, Judgment, 25 August 1925, PCIJ Series
A, p. 4 ff., p. 18.
34 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), para. 85, referring to ICJ, Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment, 26 February 2007, para. 147.
35 Ibidem, para. 85.
L. Marotti
As far as the source of such “incidental jurisdiction” is concerned, there seems to
be a general understanding among international legal scholars that the power to
make incidental determinations of the kind discussed here constitutes an inherent
component of the principal jurisdiction that stems from the effective interpretation
of the jurisdiction-conferring instrument.
29
The power to make incidental determinations over questions antecedent to the merits of a dispute falls within what has
been defined as “extension of jurisdiction by necessary implication”.
30
To give full
effect to its principal jurisdiction, an international tribunal must have the capacity to
decide any anterior issues whose determination is necessary for the exercise of the
principal jurisdiction over the main dispute.
Yet specific statements concerning this kind of jurisdiction in the case law of
international courts and tribunals are rare. The Permanent Court of International
Justice (PCIJ) referred quite explicitly to it only in two cases.
31
In Mavrommatis
Palestine Concessions, while the jurisdiction did not cover also the Protocol of
Lausanne, but was only limited to disputes relating to the interpretation and application of the 1922 Mandate for Palestine, the Court held that it had “jurisdiction to
apply the Protocol of Lausanne in so far as this is made necessary by Article II of
the Mandate”.
32
In German Interests in Polish Upper Silesia Case, the PCIJ held
that “the interpretation of other international agreements is indisputably within the
competence of the Court if such interpretation must be regarded as incidental to a
decision on point in regard to which it has jurisdiction”.
33
Most recently, in its 2015 judgment delivered in Croatia v. Serbia, the
International Court of Justice (ICJ) reaffirmed that its jurisdiction ratione materiae
under Art. IX of the Genocide Convention could not entail the power to rule on
alleged breaches of other obligations under international law, not amounting to
genocide, particularly those protecting human rights in armed conflict.
34
Yet the
Court went further stating that this jurisdictional limitation did not prevent it “from
considering, in its reasoning, whether a violation of international humanitarian law
or international human rights law has occurred to the extent that this is relevant for
the Court’s determination of whether or not there has been a breach of an obligation
under the Genocide Convention”.
35
29 Shihata (1965), p. 194. In legal literature, references to this power can also be found in Cheng
(1953), pp. 266–267, and Salles (2014), p. 114 ff. See also the references in Tzeng (2016a),
p. 557 ff.
30 Shihata (1965), p. 195.
31 For earlier arbitral practice see also Cheng (1953), pp. 266–267.
32 The Court acknowledged that “for the purpose of the settlement of a dispute of this kind the
extent and effect of the international obligations arising out of Protocol XII must be ascertained”.
33 PCIJ, Certain German Interests in Polish Upper Silesia, Judgment, 25 August 1925, PCIJ Series
A, p. 4 ff., p. 18.
34 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), para. 85, referring to ICJ, Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment, 26 February 2007, para. 147.
35 Ibidem, para. 85.
L. Marotti