400
issues for reasoning purposes. That is the reason why in the abovementioned Croatia
v. Serbia judgment the ICJ aptly specified that its jurisdictional constraints did not
prevent it “from considering, in its reasoning”,
78
external issues upon which it was
of course not competent to make any determinations. True, the distinction between
determinations and considerations in the sense employed here may be blurred
sometimes, but one may still wonder what are the legal effects of those determinations stricto sensu falling within the sphere of incidental jurisdiction.
As seen, one common feature of the abovementioned line of cases (Saiga No. 2
and others) is that the determinations over non-UNCLOS issues (concerning the use
of force and the duty not to aggravate or extend a pending dispute) were included in
the operative parts of the judgments concerned. In those cases, UNCLOS Tribunals
simply assumed the binding effect of determinations over external issues without
elaborating further on the matter.
79
However, it should be recalled that, in principle, the consensual paradigm of
international adjudication entails that the binding and final effect of an international
judgment attaches only to those findings—generally reproduced in the operative
part of a judgment—which are covered both by the scope of the jurisdiction conferred by the parties in the tribunal’s constitutive instrument and by their submissions in a specific case. Therefore, apart that, as already seen, those determinations
by UNCLOS Tribunals did not properly fit with the framework of incidental jurisdiction discussed here, it is submitted that such findings should not be included in
the operative parts anyway. Granted, the parties might consent or show willingness
in a specific case to address external incidental issues. International tribunals also
enjoy a “certain latitude in formulating the operative part of a judgment”.
80
Nevertheless, the dispositif should include only those principal findings reflecting
the principal jurisdiction of an international court, especially when it comes to a
specialized jurisdiction, such as that provided in UNCLOS Part XV.
81
It seems then clear that incidental determinations, just like reasons or considerations drawn from external issues, should be included only in the reasoning part of
the judgment. They are, by definition, decisions to be taken as a necessary step to
reach a decision on the dispute falling within the principal jurisdiction of the tribunal. Nevertheless, to state that incidental determinations over external substantive
issues must be included in the reasoning part of the judgment does not per se exclude
the binding effect of such determinations.
In order to illustrate the point, it should be first observed that UNCLOS Tribunals
have not yet fleshed out in detail the doctrine of res judicata. Yet it is to be expected
that, as with many other procedural issues, they will follow the line of the ICJ also
78 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), para. 85.
79 For a similar approach within the WTO, see the cases referred to by Bartels (2001), pp. 17–19
and (2011), p. 140.
80 Brown (2012), p. 1431.
81 For further reference to the ICJ practice, see ibidem, pp. 1432–1433.
L. Marotti
issues for reasoning purposes. That is the reason why in the abovementioned Croatia
v. Serbia judgment the ICJ aptly specified that its jurisdictional constraints did not
prevent it “from considering, in its reasoning”,
78
external issues upon which it was
of course not competent to make any determinations. True, the distinction between
determinations and considerations in the sense employed here may be blurred
sometimes, but one may still wonder what are the legal effects of those determinations stricto sensu falling within the sphere of incidental jurisdiction.
As seen, one common feature of the abovementioned line of cases (Saiga No. 2
and others) is that the determinations over non-UNCLOS issues (concerning the use
of force and the duty not to aggravate or extend a pending dispute) were included in
the operative parts of the judgments concerned. In those cases, UNCLOS Tribunals
simply assumed the binding effect of determinations over external issues without
elaborating further on the matter.
79
However, it should be recalled that, in principle, the consensual paradigm of
international adjudication entails that the binding and final effect of an international
judgment attaches only to those findings—generally reproduced in the operative
part of a judgment—which are covered both by the scope of the jurisdiction conferred by the parties in the tribunal’s constitutive instrument and by their submissions in a specific case. Therefore, apart that, as already seen, those determinations
by UNCLOS Tribunals did not properly fit with the framework of incidental jurisdiction discussed here, it is submitted that such findings should not be included in
the operative parts anyway. Granted, the parties might consent or show willingness
in a specific case to address external incidental issues. International tribunals also
enjoy a “certain latitude in formulating the operative part of a judgment”.
80
Nevertheless, the dispositif should include only those principal findings reflecting
the principal jurisdiction of an international court, especially when it comes to a
specialized jurisdiction, such as that provided in UNCLOS Part XV.
81
It seems then clear that incidental determinations, just like reasons or considerations drawn from external issues, should be included only in the reasoning part of
the judgment. They are, by definition, decisions to be taken as a necessary step to
reach a decision on the dispute falling within the principal jurisdiction of the tribunal. Nevertheless, to state that incidental determinations over external substantive
issues must be included in the reasoning part of the judgment does not per se exclude
the binding effect of such determinations.
In order to illustrate the point, it should be first observed that UNCLOS Tribunals
have not yet fleshed out in detail the doctrine of res judicata. Yet it is to be expected
that, as with many other procedural issues, they will follow the line of the ICJ also
78 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), para. 85.
79 For a similar approach within the WTO, see the cases referred to by Bartels (2001), pp. 17–19
and (2011), p. 140.
80 Brown (2012), p. 1431.
81 For further reference to the ICJ practice, see ibidem, pp. 1432–1433.
L. Marotti