394
remains an “inherently subjective exercise”.
52
It always requires weighing and balancing the different factors that the tribunal considers of relevance on a case-bycase basis. Among such factors, the way the parties’ submissions are formulated
undoubtedly plays a crucial role.
53
Other contextual aspects are important too. By
relying on the ICJ case law, the South China Sea Arbitration Tribunal held that “[s]
uch a determination will be based not only on the ‘Application and final submissions, but on diplomatic exchanges, public statements and other pertinent
evidence’”.
54
The respective weight of these factors may vary depending on the
case, as well as on the judge or arbitrator’s sensitiveness. For instance, in characterizing the dispute in the Chagos case, the Tribunal gave particular relevance to the
historical context of the dispute and found that the dispute related to land sovereignty over the Chagos Archipelago and that, accordingly, it lacked jurisdiction over
Mauritius’s first submission.
55
On the other hand, Judges Kateka and Wolfrum, in
their dissenting and concurring opinion in the same case, insisted on the wording of
the Mauritius’ submissions to find that the dispute instead was about the interpretation of Art. 56 of the Convention (and notably about the term “coastal State”), being
at the same time permissible to decide incidentally about sovereignty issues over the
Chagos Archipelago.
56
Once established that the actual dispute separating the parties concerns the interpretation or application of the Convention, there still remains to be ascertained
which other external issues could possibly fall within the “incidental” jurisdiction
of UNCLOS Tribunals. As seen, according to the Chagos test, first the non-UNCLOS
issue must be only incidental or ancillary to the UNCLOS dispute; second, it must
be “necessary” for the decision of the UNCLOS dispute; third, it must only be a
“minor” issue.
According to some commentators, an incidental connection between the nonUNCLOS issue and the UNCLOS dispute would suffice to trigger the power to
incidentally determine the non-UNCLOS issue. For instance, according to former
judge Wolfrum “[i]ssues of sovereignty or other rights over continental or insular
land territory, which are closely linked or ancillary to maritime delimitation, concern the interpretation or application of the Convention and therefore fall within its
scope”.
57
While here he referred to the case of “mixed disputes”, it is important to
recall that the problem of the scope of incidental determinations potentially extends
to any kind of non-UNCLOS issues having an incidental connection with the
UNCLOS dispute. The abovementioned line of UNCLOS cases criticized for an
improper use of Art. 293(1) is indicative in this sense. In those cases jurisdiction
52 Talmon (2016), p. 934.
53 Cf. Boyle (1997), p. 44, and Treves (2006b), p. 77.
54 South China Sea Arbitration, para. 150, quoting Fisheries Jurisdiction, para. 31.
55 Chagos Marine Protected Area Arbitration, para. 209.
56 Ibidem, Dissenting and Concurring Opinion of Judges Kateka and Wolfrum, para. 22 ff.
57 Rüdiger Wolfrum, Statement to the Informal Meeting of Legal Advisers of Ministries of Foreign
Affairs, 23 October 2006, p. 6.
L. Marotti
remains an “inherently subjective exercise”.
52
It always requires weighing and balancing the different factors that the tribunal considers of relevance on a case-bycase basis. Among such factors, the way the parties’ submissions are formulated
undoubtedly plays a crucial role.
53
Other contextual aspects are important too. By
relying on the ICJ case law, the South China Sea Arbitration Tribunal held that “[s]
uch a determination will be based not only on the ‘Application and final submissions, but on diplomatic exchanges, public statements and other pertinent
evidence’”.
54
The respective weight of these factors may vary depending on the
case, as well as on the judge or arbitrator’s sensitiveness. For instance, in characterizing the dispute in the Chagos case, the Tribunal gave particular relevance to the
historical context of the dispute and found that the dispute related to land sovereignty over the Chagos Archipelago and that, accordingly, it lacked jurisdiction over
Mauritius’s first submission.
55
On the other hand, Judges Kateka and Wolfrum, in
their dissenting and concurring opinion in the same case, insisted on the wording of
the Mauritius’ submissions to find that the dispute instead was about the interpretation of Art. 56 of the Convention (and notably about the term “coastal State”), being
at the same time permissible to decide incidentally about sovereignty issues over the
Chagos Archipelago.
56
Once established that the actual dispute separating the parties concerns the interpretation or application of the Convention, there still remains to be ascertained
which other external issues could possibly fall within the “incidental” jurisdiction
of UNCLOS Tribunals. As seen, according to the Chagos test, first the non-UNCLOS
issue must be only incidental or ancillary to the UNCLOS dispute; second, it must
be “necessary” for the decision of the UNCLOS dispute; third, it must only be a
“minor” issue.
According to some commentators, an incidental connection between the nonUNCLOS issue and the UNCLOS dispute would suffice to trigger the power to
incidentally determine the non-UNCLOS issue. For instance, according to former
judge Wolfrum “[i]ssues of sovereignty or other rights over continental or insular
land territory, which are closely linked or ancillary to maritime delimitation, concern the interpretation or application of the Convention and therefore fall within its
scope”.
57
While here he referred to the case of “mixed disputes”, it is important to
recall that the problem of the scope of incidental determinations potentially extends
to any kind of non-UNCLOS issues having an incidental connection with the
UNCLOS dispute. The abovementioned line of UNCLOS cases criticized for an
improper use of Art. 293(1) is indicative in this sense. In those cases jurisdiction
52 Talmon (2016), p. 934.
53 Cf. Boyle (1997), p. 44, and Treves (2006b), p. 77.
54 South China Sea Arbitration, para. 150, quoting Fisheries Jurisdiction, para. 31.
55 Chagos Marine Protected Area Arbitration, para. 209.
56 Ibidem, Dissenting and Concurring Opinion of Judges Kateka and Wolfrum, para. 22 ff.
57 Rüdiger Wolfrum, Statement to the Informal Meeting of Legal Advisers of Ministries of Foreign
Affairs, 23 October 2006, p. 6.
L. Marotti