Introduction

Tracing the historical evolution of the international legal order indicates that its proponents intended to establish a court of universal “compulsory jurisdiction”.[1] However, only a handful of states have consented to the compulsory jurisdiction of the ICJ, and even declarations made under Article 36(2) of the Statute of ICJ to accede to its jurisdiction are debilitated by reservations made by states.[2] Thus, all global judicial settlement means remain based on party consent.[3]

Secondly, party consent being paramount has led to the proliferation of international courts and tribunals, which has led to the creation of multiple dispute settlement fora.[4] The adverse effects of the same on international dispute settlement (IDS) are overlapping jurisdictions[5] and conflicting jurisprudence.[6] Since the contours of the jurisdiction exercised by all these forums, are shaped by party consent, it has led to the need for a comprehensive system to address and remove lacunae in IDS, mainly to ensure that the legal system operates as an integrated one. The concept of exercising incidental jurisdiction over ancillary questions by courts and tribunals is a corollary that continues to gain importance in this dynamic international legal order.

Incidental jurisdiction over a question/issue is exercised when a court/tribunal has jurisdiction rationae matirae over a particular issue as determined by the parties. However, the exercise of such jurisdiction would be incomplete without exercising jurisdiction over an issue falling outside the purview of the court/tribunal’s jurisdiction rationae matirae to which the parties have not expressly consented.[7] A court/tribunal exercises incidental jurisdiction over an ancillary question to arrive at conclusions in the operative part of the decision, i.e., to resolve the principal dispute.[8] Furthermore, since incidental determinations merely provide reasoning for the decision on the principal dispute, the same has to be excluded from the operative part of the decision rendered by a court/tribunal; hence, the incidental determinations do not have res judicata status.[9]

However, the exercise of this power comes with certain limitations as any court/tribunal will have to ensure that exercising incidental jurisdiction does not militate party consent while ensuring that they give effective meaning to the terms of the treaty/agreement.[10] Since party consent is paramount and the same determines the contours of the jurisdiction that a court /tribunal can exercise, it raises the question of how courts and tribunals are empowered to exercise incidental jurisdiction over a particular question/issue that falls outside the purview of its jurisdiction.

How are Courts and Tribunals empowered to exercise incidental jurisdiction?

Understanding Inherent powers

Courts and tribunals are empowered to exercise incidental jurisdiction because it is an inherent power. Akin to incidental jurisdiction, the exercise of inherent powers by a court/tribunal is also a corollary of party consent being paramount, proliferation and the international legal system not being integrated.[11] There are different bases/sources of inherent powers, namely the nature or status of a court/tribunal, the doctrine of implied powers and the basic judicial functions of an international court/tribunal.[12] Moreover, courts/tribunals have differing inherent powers which is dependent upon how an adjudicatory body is empowered by party consent. Hence, a court/tribunal should always look to strike a balance between not exceeding the jurisdiction defined by party consent while also aiming to exercise its jurisdiction to the fullest extent.[13] Thus, in IDS, a need for more clarity about the basis of inherent powers persists.  Therefore, for the present analysis, reliance shall be primarily placed upon the decisions of the PCIJ, ICJ and the awards passed by the Annex-VII arbitral tribunals constituted under the UN Convention on the Law of the Sea (UNCLOS), 1982.

The PCIJ, ICJ and other international tribunals have exercised inherent powers in their adjudication and have primarily cited basic judicial functions as the basis of exercising inherent powers. For example, in Mavrommatis Palestine Concessions, the PCIJ exercised its inherent powers to determine the procedure to be followed in case of any preliminary objections being raised as the Statute or the rules did not provide for any express rule regarding the same. The Court cited the administration of justice as a reason for invoking inherent powers to determine the procedure based on the fundamental principles of international law.[14] The PCIJ and ICJ in Factory at Chorzów and Corfu Channels, respectively, once again cited the fulfilment of their functions and ensuring the settlement of the disputes as a reason to invoke its inherent powers to award reparations.[15]

Basic judicial functions as the basis for exercising inherent powers were followed and further elaborated upon by the ICJ in the Nuclear Tests case, wherein the court took a cue from Sir Fitzmaurice’s separate opinion in Northern Cameroons[16] and emphasised that the Court has inherent powers that can be exercised to ensure that decision on merits is not frustrated and to ensure the orderly settlement of all matters in dispute while observing the inherent limitations in the exercise of the judicial function. Furthermore, the Court observed that the above powers can be exercised in light of the existence of the Court as a judicial organ established by the consent of states and is conferred upon it so that its basic judicial functions may be safeguarded.[17] Thus, a court/tribunal draws its sanction to exercise inherent powers to particularly safeguard the basic judicial functions of a court/tribunal, which is a necessity.

While there are multiple other bases for a court/tribunal to exercise inherent powers, it does have its limitations as a court/tribunal cannot exercise inherent powers by the express terms of a clause contraire in the constitutive instrument of a court/tribunal. For example, in the 1872 Alabama Arbitrations, the commission lacked the power to determine the claims for indirect loss, which was not provided for expressly under the Treaty of Washington. However, the parties agreed to permit the arbitrators to decide the question with a caveat that the decision on the same will not be binding unless assented to by both Governments.[18] The ICJ in Nottebohm held that an international court/tribunal can exercise inherent powers to determine the contours of its own jurisdiction ‘in the absence of an agreement to the contrary.’[19] Thus, it is clear that even the exercise of inherent powers can be curtailed if there is an agreement contrary to the exercise of the same, which is dependent upon party consent.

Why exercising incidental jurisdiction is an inherent power?

From the above discussion, it can be noted that the basis of exercising inherent powers is primarily rooted in safeguarding the basic judicial function of a court/tribunal. Regarding exercising incidental jurisdiction, various courts and tribunals have elaborated upon the approaches they can adhere to while dealing with incidental jurisdiction, such as necessity and nature/characterisation tests. The different approaches shall be traced and analysed to establish the similarities to the approaches taken by courts and tribunals while dealing with inherent powers.

The Necessity Test

An indispensable approach that has been followed since the PCIJ’s time is applying the necessity test to exercise incidental jurisdiction. The PCIJ in Certain German Interests in Polish Upper Silesia observed that it had the competence to interpret other international agreements if such interpretation is to be regarded as incidental to deciding on a point concerning which it has jurisdiction.[20] Subsequently, the ICJ in Nuclear Tests specifically noted that the Court is entitled to examine incidental questions if the same requires examination in priority to the principal claims and that such findings may be necessary for the orderly settlement of disputes.[21] This showcases that the Court applied the necessity test to exercise jurisdiction over an incidental question to resolve the principal dispute, i.e. to discharge its basic judicial function. This test of necessity has been followed by the subsequent decisions of the Court and other arbitral tribunals, such as in the Chagos Marine Protection Area,[22] South China Sea,[23] Coastal State Rights[24] and Enrica Lexie, and thus it makes the test indispensable.[25]

From the above discussion, it can be noted that necessity as a test is applied to assume incidental jurisdiction over a particular issue/question because determining a principal dispute is impossible without determining the incidental issue/question. Therefore, it is safe to conclude that the necessity test to assume incidental jurisdiction is part of the basic judicial function basis to exercise inherent powers because the test is applied to ensure that the decision on merits is not frustrated and to ensure the orderly settlement of all disputes. Thus, the purpose of the necessity test is to ensure that the decision on the case’s merits is not frustrated by the court/tribunal not willing to exercise incidental jurisdiction.

The Nature/Characterization test

However, the test of necessity alone would not suffice to exercise incidental jurisdiction as it gives rise to a fundamental problem, i.e. any court/tribunal may assume incidental jurisdiction over any issue by necessity without analysing the nature/character of the issue/question. Furthermore, exercising incidental jurisdiction just by necessity will debilitate party consent. For example, the Annex-VII arbitral tribunal in Enrica Lexie exclusively depended upon the necessity test as laid down in Certain German Interests in Polish Upper Silesia to exercise incidental jurisdiction on the issue of immunity to render an operative decision on the right to exercise criminal jurisdiction while completely failing to address the issue as to whether there were any limitations on the exercise of such power under the UNCLOS.[26]

The decision in Enrica Lexie was rendered in ignorance of the nature/characterisation test that was elaborated upon by another Annex-VII arbitral tribunal in the Chagos Marine Protected Area wherein the Court, apart from highlighting the necessity test to assume incidental jurisdiction, also stated that the ‘Court must isolate the real issue in the case and to identify the object of the claim.’[27] It was contended by Mauritius that the Arbitral Tribunal could exercise jurisdiction over the issue of whether the UK was ‘coastal state’ as it concerns the interpretation and application of provisions contained under the UNCLOS.[28] However, the tribunal refused to exercise its jurisdiction over the ‘coastal state’ issue because the tribunal applied the nature/characterisation test apart from the necessity test to conclude that the dispute is one of sovereignty over the Chagos Archipelago and, therefore, the same is not ancillary. Furthermore, the tribunal concluded that the real issue in the case and the objective of the claim was concerning the land sovereignty over the Chagos Archipelago, and thus the same does not relate to the interpretation and application of the convention even though there is an incidental connection to the principal dispute.[29]

This test of nature/characterisation was applied in subsequent UNCLOS Annex-VII arbitration of the South China Sea, wherein the tribunal was presented with similar issues to that of Chagos. The tribunal applied both the necessity test to determine that the issue of sovereignty need not be treated as a necessity prior to going into the claims and the nature/characterisation test to conclude that none of the claims put forth by the Philippines pertained to advancing its position in the Parties’ dispute over sovereignty.[30] Both the necessity test and the nature/characterisation test were also applied in the Coastal State Rights between Russia and Ukraine, wherein the Annex-VII arbitral tribunal refused to exercise jurisdiction as the dispute was primarily concerning Crimea’s sovereignty which was the real issue at hand and not an ancillary issue and thus as a prerequisite a decision would have been rendered on sovereignty to decide the claims brought by Ukraine.[31]

Thus, the necessity and the nature/characterisation test are, in essence, applied to determine whether a court/tribunal can exercise incidental jurisdiction over a particular issue/question and for the orderly settlement of disputes. Pertinently, the ICJ vide its decision in Nuclear Tests specifically noted that the power of a court to exercise incidental jurisdiction over a particular question stems from the inherent jurisdiction of the Court to render whatever incidental findings may be necessary, which is, in turn, is derived from the existence of a court/tribunal acts as a judicial body established by party consent of States and is conferred upon it to safeguard their basic judicial functions.[32] Thus, exercising incidental jurisdiction over a particular issue/question is an inherent power.

Clause Contraire

Moreover, like inherent powers, incidental jurisdiction cannot be exercised in cases where there is a clause contraire contained in the relevant treaty/agreement or if there is a specific agreement between the parties that the competence to exercise jurisdiction over the incidental issue lies with another tribunal.[33] The ICJ in Aegean Sea Case between Greece and Turkey with respect to delimiting the continental shelf, refused to exercise jurisdiction because the incidental issue, i.e., ruling on the territorial status of Greece, was expressly carved out by Greece through a reservation, which qualified to be a clause contraire in the constitutive instrument.[34] Similarly, in Malaysia/Singapore, the Court failed to deal with the incidental issue and implicitly opined that they lacked the competence to rule on the incidental. The interesting fact in both these cases is that both are Special Agreements and are not cases arising out of compromissory clauses. However, from the above analysis, it can be concluded that, like inherent powers, even incidental jurisdiction can be curtailed by a clause contraire in the constitutive treaty or agreement.

CONCLUSION

Thus, the exercise of incidental jurisdiction is by virtue of inherent powers that a court/tribunal possesses to ensure that their basic judicial functions are safeguarded which is in turn is derived from the existence of a court/tribunal’s actions as a judicial body established by party consent of States. This showcases the dialectical process between consent and basic judicial functions which allows a court/tribunal to exercise incidental jurisdiction as an inherent power.

The analysis of the abovementioned case laws of the ICJ and various tribunals showcases that while incidental jurisdiction is a concept developed to plug the lacunae arising out of proliferation and the international legal system not being an integrated one, there is a lack of coherence as to which is the appropriate approach a court/tribunal can resort to while dealing with incident questions. While there was some form of consistency in the application of both the necessity as well as the nature/characterisation test from the decision Nuclear Tests to the decision Coastal State Rights, the Annex-VII arbitral tribunal in the Enrica Lexie went a step backwards in exclusively applying the necessity test which according to critics has led to an erroneous outcome. Thus, in this multiple, parallel and fragmented legal order, there is a necessity for coherence by taking a unified approach which will, in turn, lead to a comprehensive system yearned for by the international community.

[1] B. Loder, The Permanent Court of International Justice and Compulsory Jurisdiction, (2) BRIT.Y.B. INT’L L.  (1922) at 6 and 9

[2] P. Akhavan & E. Bjorge, Between Consent and Coherence: Incidental Questions in an Imperfect World, 116 AJIL Unbound, at 166 (2022)

[3] H.W.A Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of jurisprudence, at 691 (2013)

[4] C Brown, The Proliferation of International Courts and Tribunals: Finding Your Way Through the Maze, 3 Melbourne Journal of International Law 453 (2002)

[5] V.Lowe, Overlapping Jurisdiction in International Tribunals, (20), Australian Yearbook of International Law, 191 (1999)

[6] J Charney, The Impact on the International Legal System of the Growth of International Courts and Tribunals 31 New York University Journal of International Law and Politics 697 (1999)

[7] Peter Tzeng, The Implicated Issue Problem: Indispensable Issues and Incidental Jurisdiction, 50 N. Y. U.J. Int’l L. & Pol. at  470 (2018)

[8] F.S.Eichberger, Give a Court an Inch and It Will Take a Yard? Exercise of Jurisdiction over Incidental Issues, 81(1) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, at 240 (2021)

[9] Factory at Chorzów (Germany v. Poland), Claim for Indemnity, Merits, 1928 PCIJ (ser. A) No. 17, (Judge Ehlrich, Dissenting Opinion) at 76  and (Judge M.Anzilotti, Dissenting Opinion) at 26; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, 2015 ICJ Rep. 3, at para.85

[10] See Eichberger, supra note 8, at 244

[11] See Brown, supra note 4, at 198

[12] Id., at 838

[13] Continental Shelf (Libya/Malta), Judgment, 1985 ICJ Rep. 13, para. 19

[14] Mavrommatis Palestine Concessions (Greece v UK) 1924 PCIJ Rep Series A No.2 at 1, 16

[15] Case Concerning the Factory at Chorzow, (Germany v Poland), Judgment, 1927 P.C.I.J. (ser. A) No.13 at para 9,21; Corfu Channel Case (Ukraine v Albania), Merits, Judgment, 1949 ICJ Rep. 4, at 26

[16] Northern Cameroons (Cameroons v UK) [1963] ICJ Rep.15, at 29.

[17] Nuclear Tests Case (Australia v France), Judgment, 1974 ICJ Rep. 253, at para 22 and 23

[18] See Brown, supra note 4, at 213

[19] Nottebohm (Lichtenstein v Guatemala) [1953] ICJ Rep 111, at 119

[20] Certain German Interests in Polish Upper Silesia (Germany v Poland), Judgment, 1925 (ser. A) No. 6, at 18

[21] See 17, supra

[22] Chagos Marine Protected Area (Mauritius v. UK), PCA Case No. 2011-03, Award, para. 220

[23]The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), PCA Case No. 2013-19, Award on Jurisdiction and Admissibility, paras 151-153

[24] Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v Russia), PCA Case No. 2017-06, Award Concerning the Preliminary Objections of the Russian Federation, para 192

[25] The “Enrica Lexie” Incident (Italy v. India), PCA Case No. 2015-28, Award, paras. 809, 811

[26] See 25, supra

[27] See Chagos Marine Protected Area, supra note 22, at 219-222

[28] See Chagos Marine Protected Area, supra note 22, at paras 175-182

[29] See 27, supra

[30] See The South China Sea Arbitration, supra  note 23, at Para 152 and 153

[31] See Coastal State Rights, supra note 24, at para. 190-196

[32] See 17, supra

[33]Air Services Agreement of 23 July 1977(United States of America v United Kingdom)102 ILR 564, 579

[34] Aegean Sea Continental Shelf (Greece v Turkey), Judgment, 1978 ICJ Reports 3, paras 83-90; Sovereignty over Pedra Branca/ Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore), Judgment, 2008 ICJ Reports 12, paras 204, 298, 299