392
What then appears problematic is the identification of such conditions, that is to
say the scope and limits of the power to make incidental determinations.
4 Scope and Limits of Incidental Determinations:
The Chagos Test
The determination of the scope of the incidental jurisdiction over question of merits
is particularly warranted, not least because it can help to understand the scope and
limits of the principal jurisdiction of UNCLOS Tribunals. As we shall see, however,
establishing an objective approach for this operation is not straightforward, as much
is left to the discretion of courts and tribunals seised of a dispute.
Most of the problems arising from the interpretation of Art. 288(1) UNCLOS are
indeed common to any form of jurisdiction based on compromissory clauses. As
acknowledged by the ICJ, “[o]ne situation may contain disputes which relate to
more than one body of law and which are subject to different settlement procedures”.
42
Compromissory clauses, on the other hand, have a “compartimentalizing” effect, in
the sense that they function on the premise that disputes falling within their remit
can be kept separated from other disputes not falling under compromissory clause,
even though related to the same “situation”.
43
International courts and tribunals
whose jurisdiction is based on compromissory clauses are thus called to find a balance between, on the one hand, the need to avoid that such clauses are used by Sates
“as a vehicle for forcing an unrelated dispute with another State” before them,
44
and,
on the other hand, the need to avoid declining to take cognizance of one aspect of a
dispute “merely because that dispute has other aspects, however important”.
45
Within UNCLOS dispute settlement proceedings these problems are even more
compelling given that UNCLOS disputes are often “multifaceted”, in the sense that
they arise “in the context of a broader disagreement between the parties”,
46
and may
involve issues which not necessarily fall within the scope of the Convention. As
said, this is the case, among others, of “mixed disputes” involving territorial sovereignty disputes which are the subject of a still ongoing debate.
47
It is not by chance that the Chagos Arbitration award, handed down in the context of a mixed dispute, provides the most explicit statement concerning the
42 ICJ, Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russia), Judgment, 1 April 2011, para. 32.
43 Cannizzaro and Bonafé (2005), p. 484.
44 Separate Opinion Judge Koroma in Application of the International Convention on the
Elimination of All Forms of Racial Discrimination, para. 7.
45 ICJ, United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, 24
May 1980, para. 36.
46 ICJ, Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Judgment, 24
September 2015, para. 32.
47 See Buga (2012), and Qu (2016).
L. Marotti
What then appears problematic is the identification of such conditions, that is to
say the scope and limits of the power to make incidental determinations.
4 Scope and Limits of Incidental Determinations:
The Chagos Test
The determination of the scope of the incidental jurisdiction over question of merits
is particularly warranted, not least because it can help to understand the scope and
limits of the principal jurisdiction of UNCLOS Tribunals. As we shall see, however,
establishing an objective approach for this operation is not straightforward, as much
is left to the discretion of courts and tribunals seised of a dispute.
Most of the problems arising from the interpretation of Art. 288(1) UNCLOS are
indeed common to any form of jurisdiction based on compromissory clauses. As
acknowledged by the ICJ, “[o]ne situation may contain disputes which relate to
more than one body of law and which are subject to different settlement procedures”.
42
Compromissory clauses, on the other hand, have a “compartimentalizing” effect, in
the sense that they function on the premise that disputes falling within their remit
can be kept separated from other disputes not falling under compromissory clause,
even though related to the same “situation”.
43
International courts and tribunals
whose jurisdiction is based on compromissory clauses are thus called to find a balance between, on the one hand, the need to avoid that such clauses are used by Sates
“as a vehicle for forcing an unrelated dispute with another State” before them,
44
and,
on the other hand, the need to avoid declining to take cognizance of one aspect of a
dispute “merely because that dispute has other aspects, however important”.
45
Within UNCLOS dispute settlement proceedings these problems are even more
compelling given that UNCLOS disputes are often “multifaceted”, in the sense that
they arise “in the context of a broader disagreement between the parties”,
46
and may
involve issues which not necessarily fall within the scope of the Convention. As
said, this is the case, among others, of “mixed disputes” involving territorial sovereignty disputes which are the subject of a still ongoing debate.
47
It is not by chance that the Chagos Arbitration award, handed down in the context of a mixed dispute, provides the most explicit statement concerning the
42 ICJ, Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russia), Judgment, 1 April 2011, para. 32.
43 Cannizzaro and Bonafé (2005), p. 484.
44 Separate Opinion Judge Koroma in Application of the International Convention on the
Elimination of All Forms of Racial Discrimination, para. 7.
45 ICJ, United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, 24
May 1980, para. 36.
46 ICJ, Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Judgment, 24
September 2015, para. 32.
47 See Buga (2012), and Qu (2016).
L. Marotti