396
decision on the question raised”.
63
Here again, in light of this requirement, it can be
said that the abovementioned line of UNCLOS cases (Saiga No. 2 and others) does
not seem solidly grounded, as it can hardly be argued that a determination on the use
of force was to be deemed “necessary” in order to reach a finding on the main issues
at stake.
Yet, it seems that, aside from the criterion of “necessity” referred to by the
Tribunal in Chagos and by other authorities, other criteria are also considered by
courts and tribunals in this context. As mentioned, in the Southern Bluefin Tuna case
the ITLOS referred to a different, more flexible standard, that of the relevance of the
external issue.
64
The criterion based on the relevance of the incidental determination
over the external issue has been also employed by the ICJ in the abovementioned
Croatia v. Serbia.
65
According to a further view, a tribunal would be free to exercise
its incidental jurisdiction well beyond the case when such incidental matter is necessary or even simply relevant for the determination of the principle issue. According
to such view the wide power of international tribunals in this context would be a
consequence of the principle that international courts and tribunals enjoy a freedom
to select the grounds upon which the judgment will be based.
66
This approach
appears to have been endorsed by the WTO Appellate Body. For example, in
EC-Hormones, it held that “nothing in the DSU limits the faculty of a panel freely
to use arguments submitted by any of the parties – or to develop its own legal reasoning – to support its own findings and conclusions on the matter under its
consideration”.
67
This is the same approach taken by the ICJ when assessing the
limits of the ne ultra petita principle. As the Court stated in the Arrest Warrant case,
this principle cannot preclude the Court from addressing certain legal points in its
reasoning. The Court may deal with certain aspects of questions not asked to it “in
the reasoning of the judgment, should it deem necessary or desirable”.
68
To sum up, the case law available does not appear univocal with respect to the
criteria to be followed in order to delimit the incidental jurisdiction over matters
falling outside one court’s jurisdiction. To the criterion of “necessity” one might
oppose more flexible criteria, such as that of the “relevance” or even the
“desirability”.
In this respect, two observations are in order. First, one should distinguish
between the relative freedom enjoyed by courts and tribunals in developing the
reasoning supporting their findings and the more cautious approach that seems to be
63 Eiriksson (2000), p. 113. See also Salles (2014), pp. 119–122.
64 Southern Bluefin Tuna Cases.
65 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia).
66 This seems to be the view of Bartels (2018), pp. 17–18. See also Bartels (2001), pp. 511–513. On
the “freedom to select”, see generally Orakhelashvili (2007).
67 WTO Appellate Body, EC – Hormones, WT/DS26/AB/R, WT/DS48/AB/R, 16 January 1998,
para. 156.
68 ICJ, Arrest Warrant (Democratic Republic of the Congo v. Belgium), Judgment, 14 February
2002, para. 43 (emphasis added).
L. Marotti
decision on the question raised”.
63
Here again, in light of this requirement, it can be
said that the abovementioned line of UNCLOS cases (Saiga No. 2 and others) does
not seem solidly grounded, as it can hardly be argued that a determination on the use
of force was to be deemed “necessary” in order to reach a finding on the main issues
at stake.
Yet, it seems that, aside from the criterion of “necessity” referred to by the
Tribunal in Chagos and by other authorities, other criteria are also considered by
courts and tribunals in this context. As mentioned, in the Southern Bluefin Tuna case
the ITLOS referred to a different, more flexible standard, that of the relevance of the
external issue.
64
The criterion based on the relevance of the incidental determination
over the external issue has been also employed by the ICJ in the abovementioned
Croatia v. Serbia.
65
According to a further view, a tribunal would be free to exercise
its incidental jurisdiction well beyond the case when such incidental matter is necessary or even simply relevant for the determination of the principle issue. According
to such view the wide power of international tribunals in this context would be a
consequence of the principle that international courts and tribunals enjoy a freedom
to select the grounds upon which the judgment will be based.
66
This approach
appears to have been endorsed by the WTO Appellate Body. For example, in
EC-Hormones, it held that “nothing in the DSU limits the faculty of a panel freely
to use arguments submitted by any of the parties – or to develop its own legal reasoning – to support its own findings and conclusions on the matter under its
consideration”.
67
This is the same approach taken by the ICJ when assessing the
limits of the ne ultra petita principle. As the Court stated in the Arrest Warrant case,
this principle cannot preclude the Court from addressing certain legal points in its
reasoning. The Court may deal with certain aspects of questions not asked to it “in
the reasoning of the judgment, should it deem necessary or desirable”.
68
To sum up, the case law available does not appear univocal with respect to the
criteria to be followed in order to delimit the incidental jurisdiction over matters
falling outside one court’s jurisdiction. To the criterion of “necessity” one might
oppose more flexible criteria, such as that of the “relevance” or even the
“desirability”.
In this respect, two observations are in order. First, one should distinguish
between the relative freedom enjoyed by courts and tribunals in developing the
reasoning supporting their findings and the more cautious approach that seems to be
63 Eiriksson (2000), p. 113. See also Salles (2014), pp. 119–122.
64 Southern Bluefin Tuna Cases.
65 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia).
66 This seems to be the view of Bartels (2018), pp. 17–18. See also Bartels (2001), pp. 511–513. On
the “freedom to select”, see generally Orakhelashvili (2007).
67 WTO Appellate Body, EC – Hormones, WT/DS26/AB/R, WT/DS48/AB/R, 16 January 1998,
para. 156.
68 ICJ, Arrest Warrant (Democratic Republic of the Congo v. Belgium), Judgment, 14 February
2002, para. 43 (emphasis added).
L. Marotti