404
reluctance can perhaps be explained as the concept of “jurisdiction by necessary
implication” inevitably impinge upon the principle of consent. Its employment thus
requires a careful and prudent approach.
Third, so far international courts and tribunals have not traced yet a fully developed doctrine of incidental jurisdiction over necessary antecedent issues. As far as
UNCLOS Tribunals are concerned, the Chagos dictum is the only elaborated statement on it. Yet the contours of the incidental jurisdiction over non-UNCLOS issues
and the requirements of incidental connection, necessity and minor character of the
external issue are still mostly vague. The conditions for the exercise of such extended
jurisdiction essentially refer to judicial assessments which remain to a large extent
discretionary. Even the question of the legal effects of incidental determinations,
besides being a matter still open to discussion in case law and legal literature,
appears in the end to depend on how courts and tribunals shape the reasons in their
judgments and on how they perceive and qualify such reasons (as “essential” or
merely “relevant”, desirable, etc.). Further clarifications from tribunals constituted
under UNCLOS Part XV are no doubt needed.
Against this backdrop, it may be concluded that the power to make incidental
determination over external aspects of a dispute epitomizes UNCLOS Tribunals’
discretion in handling that tension which the ICJ summarized in the statement that
it “must not exceed the jurisdiction conferred upon it by the Parties, but it must also
exercise that jurisdiction to its full extent”.
96
That is to say, the tension between the
principle of consent and the principle of effectiveness in the exercise of Part XV
jurisdiction.
97
It will be up to judges and arbitrators acting under Part XV to strike a
balance between these two crucial principles, in the awareness that such balance
will have a remarkable impact both on States’ propensity towards compulsory jurisdiction and on the capacity of the system to deal with multifaceted disputes in a
consistent and efficient way.
References
Akande D (2017) Applications for revision of the International Court of Justice’s judgment: the
curious “case” for revision of the Bosnian Genocide Judgment. www.ejiltalk.org
Bartels L (2001) Applicable law in WTO dispute settlement proceedings. J World Trade 35:499–519
Bartels L (2011) Jurisdiction and applicable law clauses: where does a tribunal find the principal
norms applicable to the case before it? In: Broude T, Shany Y (eds) Multisourced equivalent
norms in international law. Hart, Oxford, pp 115–142
Bartels L (2018) Jurisdiction and applicable law in the WTO. Society of International Economic
Law (SIEL), Fifth Biennial Global Conference Working Paper No. 2016/18
Boyle A (1997) Dispute settlement and the law of the sea convention: problems of fragmentation
and jurisdiction. Int Comp Law Q 46:37–54
Boyle A, Harrison J (2013) Judicial settlement of international environmental disputes: current
problems. J Int Dispute Settlement 4:245–276
96 Continental Shelf, para. 19.
97 Klein (2016), p. 415.
L. Marotti
reluctance can perhaps be explained as the concept of “jurisdiction by necessary
implication” inevitably impinge upon the principle of consent. Its employment thus
requires a careful and prudent approach.
Third, so far international courts and tribunals have not traced yet a fully developed doctrine of incidental jurisdiction over necessary antecedent issues. As far as
UNCLOS Tribunals are concerned, the Chagos dictum is the only elaborated statement on it. Yet the contours of the incidental jurisdiction over non-UNCLOS issues
and the requirements of incidental connection, necessity and minor character of the
external issue are still mostly vague. The conditions for the exercise of such extended
jurisdiction essentially refer to judicial assessments which remain to a large extent
discretionary. Even the question of the legal effects of incidental determinations,
besides being a matter still open to discussion in case law and legal literature,
appears in the end to depend on how courts and tribunals shape the reasons in their
judgments and on how they perceive and qualify such reasons (as “essential” or
merely “relevant”, desirable, etc.). Further clarifications from tribunals constituted
under UNCLOS Part XV are no doubt needed.
Against this backdrop, it may be concluded that the power to make incidental
determination over external aspects of a dispute epitomizes UNCLOS Tribunals’
discretion in handling that tension which the ICJ summarized in the statement that
it “must not exceed the jurisdiction conferred upon it by the Parties, but it must also
exercise that jurisdiction to its full extent”.
96
That is to say, the tension between the
principle of consent and the principle of effectiveness in the exercise of Part XV
jurisdiction.
97
It will be up to judges and arbitrators acting under Part XV to strike a
balance between these two crucial principles, in the awareness that such balance
will have a remarkable impact both on States’ propensity towards compulsory jurisdiction and on the capacity of the system to deal with multifaceted disputes in a
consistent and efficient way.
References
Akande D (2017) Applications for revision of the International Court of Justice’s judgment: the
curious “case” for revision of the Bosnian Genocide Judgment. www.ejiltalk.org
Bartels L (2001) Applicable law in WTO dispute settlement proceedings. J World Trade 35:499–519
Bartels L (2011) Jurisdiction and applicable law clauses: where does a tribunal find the principal
norms applicable to the case before it? In: Broude T, Shany Y (eds) Multisourced equivalent
norms in international law. Hart, Oxford, pp 115–142
Bartels L (2018) Jurisdiction and applicable law in the WTO. Society of International Economic
Law (SIEL), Fifth Biennial Global Conference Working Paper No. 2016/18
Boyle A (1997) Dispute settlement and the law of the sea convention: problems of fragmentation
and jurisdiction. Int Comp Law Q 46:37–54
Boyle A, Harrison J (2013) Judicial settlement of international environmental disputes: current
problems. J Int Dispute Settlement 4:245–276
96 Continental Shelf, para. 19.
97 Klein (2016), p. 415.
L. Marotti