403
Therefore, since this paper focuses only on incidental determinations concerning
substantive questions outside one court’s jurisdiction—that is to say determinations
that are usually made in the merits phase of a given case (and that should be avoided
in preliminary objections or other incidental proceedings)—it seems in the end that
the “stabilizing effect” attached to these determinations would remain relevant only
for any subsequent proceeding instituted for reparation.
94
It is still to be seen whether these considerations on the legal effects of incidental
determinations will ever be of some relevance for UNCLOS Tribunals. So far, apart
from the Arctic Sunrise case,
95
where, while discussed, incidental determinations
were not made in the merits judgment, specific proceedings for compensation have
not yet been instituted. Nor requests for interpretation or revision of a decision have
ever been submitted.
6 Concluding Remarks
Among the potential—and still under-explored—gateways for the “expansion” of
the jurisdiction of UNCLOS Tribunals, the exercise of incidental jurisdiction over
non-UNCLOS issues is the most controversial one. By moving from the interplay
between jurisdiction and applicable law under UNCLOS Part XV, this paper has
tried to illustrate and discuss the legal framework—in terms of sources, conditions
and effects—within which the jurisdiction ratione materiae of UNCLOS Tribunals
could extend to external matters regulated outside the Convention. The above
assessment can be summarized as follows.
First, in UNCLOS dispute settlement proceedings the interplay between jurisdiction and applicable law still appears to be vitiated by ambiguous judicial approaches
as to the use of Art. 293(1). In addition to raising the question of the proper role of
the applicable law clause under UNCLOS Part XV, it is submitted that these controversial judicial approaches raise more general issues concerning the scope of
UNCLOS Tribunals’ incidental jurisdiction over questions of merits.
Second, it is generally acknowledged that UNCLOS Tribunals, like other international tribunals, have an inherent incidental jurisdiction to determine issues
beyond the scope of their jurisdiction ratione materiae to the extent that the settlement of these issues is necessary for the settlement of the dispute. However, this
kind of jurisdiction has only rarely been directly addressed in case law. This
94 In the Factory at Chorzów (Merits) case, p. 32, the PCIJ actually confirmed its view also with
respect to reparation: “[t]he Court, having been of opinion that the Oberschlesische’s right to the
Chorzów factory justified the conclusion that the Polish Government’s attitude in respect of that
Company was not in conformity with Article 6 and the following articles of the Geneva Convention,
must necessarily maintain that opinion when the same situation at law has to be considered for the
purpose of giving judgment in regard to the reparation claimed as a result of the act which has been
declared by the Court not to be in conformity with the Convention”. As noted by Cheng (1953),
Judge Anzilotti, who had dissented in the interpretation phase, did not dissent on the point.
95 Arctic Sunrise Arbitration, Award on Compensation, 10 July 2017.
Between Consent and Effectiveness: Incidental Determinations and the Expansion…
Therefore, since this paper focuses only on incidental determinations concerning
substantive questions outside one court’s jurisdiction—that is to say determinations
that are usually made in the merits phase of a given case (and that should be avoided
in preliminary objections or other incidental proceedings)—it seems in the end that
the “stabilizing effect” attached to these determinations would remain relevant only
for any subsequent proceeding instituted for reparation.
94
It is still to be seen whether these considerations on the legal effects of incidental
determinations will ever be of some relevance for UNCLOS Tribunals. So far, apart
from the Arctic Sunrise case,
95
where, while discussed, incidental determinations
were not made in the merits judgment, specific proceedings for compensation have
not yet been instituted. Nor requests for interpretation or revision of a decision have
ever been submitted.
6 Concluding Remarks
Among the potential—and still under-explored—gateways for the “expansion” of
the jurisdiction of UNCLOS Tribunals, the exercise of incidental jurisdiction over
non-UNCLOS issues is the most controversial one. By moving from the interplay
between jurisdiction and applicable law under UNCLOS Part XV, this paper has
tried to illustrate and discuss the legal framework—in terms of sources, conditions
and effects—within which the jurisdiction ratione materiae of UNCLOS Tribunals
could extend to external matters regulated outside the Convention. The above
assessment can be summarized as follows.
First, in UNCLOS dispute settlement proceedings the interplay between jurisdiction and applicable law still appears to be vitiated by ambiguous judicial approaches
as to the use of Art. 293(1). In addition to raising the question of the proper role of
the applicable law clause under UNCLOS Part XV, it is submitted that these controversial judicial approaches raise more general issues concerning the scope of
UNCLOS Tribunals’ incidental jurisdiction over questions of merits.
Second, it is generally acknowledged that UNCLOS Tribunals, like other international tribunals, have an inherent incidental jurisdiction to determine issues
beyond the scope of their jurisdiction ratione materiae to the extent that the settlement of these issues is necessary for the settlement of the dispute. However, this
kind of jurisdiction has only rarely been directly addressed in case law. This
94 In the Factory at Chorzów (Merits) case, p. 32, the PCIJ actually confirmed its view also with
respect to reparation: “[t]he Court, having been of opinion that the Oberschlesische’s right to the
Chorzów factory justified the conclusion that the Polish Government’s attitude in respect of that
Company was not in conformity with Article 6 and the following articles of the Geneva Convention,
must necessarily maintain that opinion when the same situation at law has to be considered for the
purpose of giving judgment in regard to the reparation claimed as a result of the act which has been
declared by the Court not to be in conformity with the Convention”. As noted by Cheng (1953),
Judge Anzilotti, who had dissented in the interpretation phase, did not dissent on the point.
95 Arctic Sunrise Arbitration, Award on Compensation, 10 July 2017.
Between Consent and Effectiveness: Incidental Determinations and the Expansion…