391
As far as UNCLOS Tribunals are concerned, it is worth mentioning the ITLOS
order on provisional measures in the Southern Bluefin Tuna case. The Tribunal held,
among other things, that the conduct of the parties under the 1993 Convention on
the conservation of Southern Bluefin Tuna, over which it did not have jurisdiction,
was “relevant to an evaluation of the extent to which the parties are in compliance
with their obligations under the Convention on the Law of the Sea”.
36
Finally, the most explicit reference to the jurisdiction over incidental issues can
be found in the award rendered in Chagos,
37
where the Annex VII Tribunal made for
the first time (though only obiter) a general statement regarding this kind of incidental jurisdiction:
[a]s a general matter, […] where a dispute concerns the interpretation or application of the
Convention, the jurisdiction of a court or tribunal pursuant to Article 288(1) extends to making such findings of fact or ancillary determinations of law as are necessary to resolve the
dispute presented to it (…).
38 Where the ‘real issue in the case’ and the ‘object of the claim’
(…)
39 do not relate to the interpretation or application of the Convention, however, an incidental connection between the dispute and some matter regulated by the Convention is
insufficient to bring the dispute, as a whole, within the ambit of Article 288(1). The Tribunal
does not categorically exclude that in some instances a minor issue of territorial sovereignty
could indeed be ancillary to a dispute concerning the interpretation or application of the
Convention.
40
From this survey, it may be inferred that the existence of the power to make incidental determinations over external issues is taken from granted by courts and tribunals. But if it is assumed that the jurisdiction over incidental questions is inherent in
the capacity of any international tribunal to exercise the jurisdiction conferred upon
it by the Parties “to its full extent”,
41
it is then apparent that one cannot find the
source of such jurisdiction within applicable law clauses. The abovementioned line
of cases of UNCLOS Tribunals exercising jurisdiction over incidental disputes by
means of Art. 293(1) is thus simply based on a misconception of the source of such
jurisdiction. The relevant applicable law clause can come into play and provide the
“external” rules to be applied only when the conditions for making incidental determinations over “external” matters are met.
36 ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Order, 27
August 1999, para. 50. Compare also Biloune and Marine Drive Complex Ltd. v. Ghana Investments
Centre and the Government of Ghana, Award on Jurisdiction and Liability, 27 October 1989, 95
ILR 184, p. 203, where an investment tribunal acknowledged that it lacked jurisdiction to address,
“as an independent cause of action”, a claim of violation of the investor’s human rights. It nonetheless found that “the acts alleged to violate the international human rights of Mr. Biloune may be
relevant in considering the investment dispute under arbitration”.
37 PCA, Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18
March 2015. For a critical comment on the Award, see the chapter by Gervasi in this volume.
38 Here the Annex VII Tribunal quoted the abovementioned passage in the German Interests case.
39 Quoting ICJ, Nuclear Tests (New Zealand v. France), Judgment, 20 December 1974, para. 30.
40 Chagos Marine Protected Area Arbitration, paras 220–221.
41 ICJ, Continental Shelf (Libya/Malta), Judgment, 3 June 1985, para. 19.
Between Consent and Effectiveness: Incidental Determinations and the Expansion…
As far as UNCLOS Tribunals are concerned, it is worth mentioning the ITLOS
order on provisional measures in the Southern Bluefin Tuna case. The Tribunal held,
among other things, that the conduct of the parties under the 1993 Convention on
the conservation of Southern Bluefin Tuna, over which it did not have jurisdiction,
was “relevant to an evaluation of the extent to which the parties are in compliance
with their obligations under the Convention on the Law of the Sea”.
36
Finally, the most explicit reference to the jurisdiction over incidental issues can
be found in the award rendered in Chagos,
37
where the Annex VII Tribunal made for
the first time (though only obiter) a general statement regarding this kind of incidental jurisdiction:
[a]s a general matter, […] where a dispute concerns the interpretation or application of the
Convention, the jurisdiction of a court or tribunal pursuant to Article 288(1) extends to making such findings of fact or ancillary determinations of law as are necessary to resolve the
dispute presented to it (…).
38 Where the ‘real issue in the case’ and the ‘object of the claim’
(…)
39 do not relate to the interpretation or application of the Convention, however, an incidental connection between the dispute and some matter regulated by the Convention is
insufficient to bring the dispute, as a whole, within the ambit of Article 288(1). The Tribunal
does not categorically exclude that in some instances a minor issue of territorial sovereignty
could indeed be ancillary to a dispute concerning the interpretation or application of the
Convention.
40
From this survey, it may be inferred that the existence of the power to make incidental determinations over external issues is taken from granted by courts and tribunals. But if it is assumed that the jurisdiction over incidental questions is inherent in
the capacity of any international tribunal to exercise the jurisdiction conferred upon
it by the Parties “to its full extent”,
41
it is then apparent that one cannot find the
source of such jurisdiction within applicable law clauses. The abovementioned line
of cases of UNCLOS Tribunals exercising jurisdiction over incidental disputes by
means of Art. 293(1) is thus simply based on a misconception of the source of such
jurisdiction. The relevant applicable law clause can come into play and provide the
“external” rules to be applied only when the conditions for making incidental determinations over “external” matters are met.
36 ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Order, 27
August 1999, para. 50. Compare also Biloune and Marine Drive Complex Ltd. v. Ghana Investments
Centre and the Government of Ghana, Award on Jurisdiction and Liability, 27 October 1989, 95
ILR 184, p. 203, where an investment tribunal acknowledged that it lacked jurisdiction to address,
“as an independent cause of action”, a claim of violation of the investor’s human rights. It nonetheless found that “the acts alleged to violate the international human rights of Mr. Biloune may be
relevant in considering the investment dispute under arbitration”.
37 PCA, Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18
March 2015. For a critical comment on the Award, see the chapter by Gervasi in this volume.
38 Here the Annex VII Tribunal quoted the abovementioned passage in the German Interests case.
39 Quoting ICJ, Nuclear Tests (New Zealand v. France), Judgment, 20 December 1974, para. 30.
40 Chagos Marine Protected Area Arbitration, paras 220–221.
41 ICJ, Continental Shelf (Libya/Malta), Judgment, 3 June 1985, para. 19.
Between Consent and Effectiveness: Incidental Determinations and the Expansion…