393
jurisdiction over incidental issues. From the above-quoted passage it can be inferred
that three conditions should be met in order to let the non-UNCLOS issue fall within
the “extended” jurisdiction of an UNCLOS Tribunal. First, there must be an “incidental connection” between the non-UNCLOS issue and the issue concerning the
interpretation and application of the Convention. In other words, the non-UNCLOS
issue must be “ancillary” to the UNCLOS issue. Second, the Chagos Tribunal
referred to the condition of “necessity”. Findings on incidental issues can be made
by UNCLOS Tribunals to the extent that they are “necessary” to resolve the dispute
concerning the interpretation or application of the Convention.
48
Thirdly, the nonUNCLOS issue, and notably the issue of territorial sovereignty, must be a “minor”
issue, such that it can, “in some instances”, fall within the scope of the “extended”
jurisdiction of UNCLOS Tribunals.
In order to assess whether these three requirements are cumulatively met, so that
the power to make incidental determinations over non-UNCLOS issues can be
properly exercised, it is essential for a tribunal to first characterize the dispute presented to it, that is to determine whether the “real issue of the case” and the “object
of the claim” relate to the interpretation or application of the Convention. Indeed,
for a matter to be qualified as “incidental”, it should be assessed first what is the
“principal” matter to which the non-UNCLOS issue is incidentally connected. In
this respect, it should be noted that recent case law of UNCLOS Tribunals has contributed to shed some light on the process of determining and characterizing a dispute. As the Annex VII Tribunal summarized this operation in the Chagos award, “it
is for the Tribunal itself ‘while giving particular attention to the formulation of the
dispute chosen by the Applicant, to determine on an objective basis the dispute
dividing the parties, by examining the position of both parties’ […] and in the process ‘to isolate the real issue in the case and to identify the object of the claim’”.
49
This task requires an international tribunal to consider also the “context of the submission” and “the manner in which it has been presented”, namely all other factors
that may help in objectively establish the dispute “actually separating the Parties”.
50
In the South China Sea Arbitration, the Annex VII Tribunal further stated that “[t]he
nature of the dispute may have significant jurisdictional implications, including
whether the dispute can fairly be said to concern the interpretation or application of
the Convention or whether subject-matter based exclusions from jurisdiction are
applicable. Here again, an objective approach is called for, and the Tribunal is
required to ‘isolate the real issue in the case and to identify the object of the claim’”.
51
Now, while tribunals call for the employment of an objective approach in the
process of characterizing a dispute, it can nonetheless be argued that such operation
48 See Tanaka (2016), p. 316, calling the dictum of the Chagos Tribunal “ancillary test”.
49 Chagos Marine Protected Area Arbitration, para. 208, quoting ICJ, Fisheries Jurisdiction (Spain
v. Canada), Judgment, 4 December 1998, para. 30, and Nuclear Tests, para. 30.
50 Chagos Marine Protected Area Arbitration, para. 229. See Talmon (2016), pp. 933–934.
51 South China Sea Arbitration, para. 150. For a discussion about the differences in the approaches
of the arbitral tribunals in the two cases at hand, see Forteau (2016), pp. 200–203.
Between Consent and Effectiveness: Incidental Determinations and the Expansion…
jurisdiction over incidental issues. From the above-quoted passage it can be inferred
that three conditions should be met in order to let the non-UNCLOS issue fall within
the “extended” jurisdiction of an UNCLOS Tribunal. First, there must be an “incidental connection” between the non-UNCLOS issue and the issue concerning the
interpretation and application of the Convention. In other words, the non-UNCLOS
issue must be “ancillary” to the UNCLOS issue. Second, the Chagos Tribunal
referred to the condition of “necessity”. Findings on incidental issues can be made
by UNCLOS Tribunals to the extent that they are “necessary” to resolve the dispute
concerning the interpretation or application of the Convention.
48
Thirdly, the nonUNCLOS issue, and notably the issue of territorial sovereignty, must be a “minor”
issue, such that it can, “in some instances”, fall within the scope of the “extended”
jurisdiction of UNCLOS Tribunals.
In order to assess whether these three requirements are cumulatively met, so that
the power to make incidental determinations over non-UNCLOS issues can be
properly exercised, it is essential for a tribunal to first characterize the dispute presented to it, that is to determine whether the “real issue of the case” and the “object
of the claim” relate to the interpretation or application of the Convention. Indeed,
for a matter to be qualified as “incidental”, it should be assessed first what is the
“principal” matter to which the non-UNCLOS issue is incidentally connected. In
this respect, it should be noted that recent case law of UNCLOS Tribunals has contributed to shed some light on the process of determining and characterizing a dispute. As the Annex VII Tribunal summarized this operation in the Chagos award, “it
is for the Tribunal itself ‘while giving particular attention to the formulation of the
dispute chosen by the Applicant, to determine on an objective basis the dispute
dividing the parties, by examining the position of both parties’ […] and in the process ‘to isolate the real issue in the case and to identify the object of the claim’”.
49
This task requires an international tribunal to consider also the “context of the submission” and “the manner in which it has been presented”, namely all other factors
that may help in objectively establish the dispute “actually separating the Parties”.
50
In the South China Sea Arbitration, the Annex VII Tribunal further stated that “[t]he
nature of the dispute may have significant jurisdictional implications, including
whether the dispute can fairly be said to concern the interpretation or application of
the Convention or whether subject-matter based exclusions from jurisdiction are
applicable. Here again, an objective approach is called for, and the Tribunal is
required to ‘isolate the real issue in the case and to identify the object of the claim’”.
51
Now, while tribunals call for the employment of an objective approach in the
process of characterizing a dispute, it can nonetheless be argued that such operation
48 See Tanaka (2016), p. 316, calling the dictum of the Chagos Tribunal “ancillary test”.
49 Chagos Marine Protected Area Arbitration, para. 208, quoting ICJ, Fisheries Jurisdiction (Spain
v. Canada), Judgment, 4 December 1998, para. 30, and Nuclear Tests, para. 30.
50 Chagos Marine Protected Area Arbitration, para. 229. See Talmon (2016), pp. 933–934.
51 South China Sea Arbitration, para. 150. For a discussion about the differences in the approaches
of the arbitral tribunals in the two cases at hand, see Forteau (2016), pp. 200–203.
Between Consent and Effectiveness: Incidental Determinations and the Expansion…