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INTERNATIONAL LITIGATION AND THE DISAGGREGATION OF DISPUTES: UKRAINE/RUSSIA AS A CASE STUDY

  • Lawrence Hill-Cawthorne (a1)

Abstract

This article explores the phenomenon of ‘disaggregation’ of disputes in international law, that is, the carving up of broader disputes into discrete legal claims based on different international legal rules and subject to the jurisdiction of different international tribunals. In particular, its focus is on certain under-explored consequences of this phenomenon for the jurisdiction of international tribunals, asking whether the relationship between the specific claims and the broader dispute might affect the jurisdiction of the tribunals. Employing the ongoing Ukraine/Russia dispute, which has yielded multiple claims before different international tribunals, the article offers an original analysis of these jurisdictional questions. It presents three approaches discernible from case law where tribunals face claims over which they appear to have jurisdiction that implicate a broader dispute over which they do not. The article ends with a consideration of possible explanations for why a tribunal might follow one approach over the others in any given case.

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I am very grateful to the editors and the anonymous reviewers for their very constructive feedback. An earlier version of this article was presented at the Faculty of Law, University of Oslo in September 2018; I am very grateful for comments received there.

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References

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1 The language of ‘compartmentalization’ is borrowed from Cannizzaro, E and Bonafé, B, ‘Fragmenting International Law through Compromissory Clauses? Some Remarks of the Decision of the ICJ in the Oil Platforms case’ (2005) 16 EJIL 481, 484. Similarly, see Tams, CJ, ‘The Continued Relevance of Compromissory Clauses as a Source of ICJ Jurisdiction’ in Giegerich, T (ed), A Wiser Century? Judicial Dispute Settlement, Disarmament, and the Laws of Wars 100 Years after the Second Hague Peace Conference (Duncker & Humblot 2009) (‘… a jurisdiction that is treaty-specific thus favours the artificial truncation of disputes’); Boyle, A, ‘Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction’ (1997) 46 ICLQ 37 (using the metaphor of ‘salami-slicing’); Zimmerman, A, ‘Between the Quest for Universality and Its Limited Jurisdiction: The Role of the International Court of Justice in Enhancing the International Rule of Law’ in Gaya, G and Stoutenburg, J Groute (eds), Enhancing the Rule of Law through the International Court of Justice (Brill 2014) 40–1 (compromissory clauses ‘might force the applicant State to squeeze the facts through the eye of a needle, and thereby to frame its application with a focus on one particular treaty only’.).

2 Greenwood, CJ, ‘Some Challenges of International Litigation’ (2012) 1 CJICL 7, 16.

3 W Booth, ‘Ukraine's Parliament Votes to Oust President; Former Prime Minister is Freed from Prison’ The Washington Post (22 February 2014); S Walker, ‘Ousted Ukrainian Leader Viktor Yanukovych Reported to Be in Russia’ The Guardian (27 February 2014).

4 SL Myers and E Barry, ‘Putin Reclaims Crimea for Russia and Bitterly Denounces the West’ The New York Times (18 March 2014).

5 President of Ukraine, 'Extraordinary Message of the President of Ukraine to the Verkhovna Rada' (29 August 2019) available at <https://www.president.gov.ua/en/news/pozachergove-poslannya-prezidenta-ukrayini-do-verhovnoyi-rad-56981>.

6 ‘Ukraine Says Donetsk “Anti-Terror Operation” under Way’ BBC News (16 April 2014); DM Herszenhorn and P Baker, ‘Russia Steps up Help for Rebels in Ukraine War’ The New York Times (25 July 2014); A Luhn and D Roberts, ‘Ukraine Condemns “Direct Invasion” as Russian Aid Convoy Crosses Border’ The Guardian (23 August 2014); ‘Ukraine Separatists Declare Independence’ Al-Jazeera (12 May 2014); J Coman, ‘On the Frontline of Europe's Forgotten War in Ukraine’ The Guardian (12 November 2017).

7 The claims referred to here are cited in full when discussed later in the article.

8 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3.

9 The term ‘disaggregation’ is used here over other frequently used descriptions of this phenomenon, such as ‘framing’ of disputes or ‘compartmentalization’. It is considered that ‘disaggregation’ better captures the fact, particularly featured in the Ukraine/Russia litigation, that each claim is often not merely a different way of framing the broader dispute but a specific legal claim arising from that broader dispute and existing in parallel with other specific legal claims. It also reminds us that this phenomenon is not merely a litigation strategy but also a structural feature of international judicial settlement.

10 For a very small selection, see, eg, ‘Address by HE Judge Gilbert Guillaume, President of the International Court of Justice, to the United Nations General Assembly’ (26 October 2000) available at <https://www.icj-cij.org/files/press-releases/9/2999.pdf>; Charney, JI, ‘Is International Law Threatened by Multiple International Tribunals?’ (1998) 271 RdC 1; Kingsbury, B, ‘Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem?’ (1999) 31 AJIL 679; Dupuy, P-M, ‘The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice’ (1999) 31 AJIL 791; Abi-Saab, G, ‘Fragmentation or Unification? Some Concluding Remarks’ (1999) 31 AJIL 919; Oellers-Frahm, K, ‘Multiplication of International Courts and Tribunals and Conflicting Jurisdiction – Problems and Possible Solutions’ (2001) 5 MaxPlanckYrbkUNL 67; Pauwelyn, J and Salles, EL, ‘Forum Shopping before International Tribunals: (Real) Concerns, (Im)Possible Solutions’ (2009) 42 CornellIntlLJ 77; Webb, P, International Judicial Integration and Fragmentation (Oxford University Press 2016); Pellet, A, ‘Should We (Still) Worry About Fragmentation?’ in Føllesdal, A and Ulfstein, G (eds), The Judicialization of International Law: A Mixed Blessing? (Oxford University Press 2018); de Chazournes, L Boisson, ‘Plurality in the Fabric of International Courts and Tribunals: The Threads of a Managerial Approach’ (2017) 28 EJIL 13.

11 As discussed below, Russia has invoked this preliminary objection before both the ICJ and Annex VII tribunals: see text to (nn 89–92) and text to (nn 120–121) respectively.

12 Grant, TD, ‘International Dispute Settlement in Response to an Unlawful Seizure of Territory: Three Mechanisms’ (2015) 16 ChicagoJIntlL 1; Repousis, OG, ‘Why Russian Investment Treaties Could Apply to Crimea and What Would This Mean for the Ongoing Russo–Ukrainian Territorial Conflict’ (2016) 32 ArbIntl 459; Volterra, RG, Mandelli, GF, and Nistal, Á, ‘The Characterization of the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait’ (2018) 33 International Journal of Maritime and Coastal Law 614; Tzeng, P, ‘The Implicated Issue Problem: Indispensable Issues and Incidental Jurisdiction’ (2018) 50 NYUJIntlLaw&Pol 447; Nuridzhanian, G, ‘Crimea in International Courts and Tribunals: Matters of Jurisdiction’ (2018) 21 MaxPlanckYrbkUNL 378.

13 International Convention for the Suppression of the Financing of Terrorism (adopted 9 December 1999, entered into force 10 April 2002), 2178 UNTS 197 (hereinafter ‘ICSFT’); International Convention on the Elimination of All Forms of Racial Discrimination (adopted 7 March 1966, entered into force 4 January 1969), 660 UNTS 195 (hereinafter ‘CERD’).

14 Art 24(1) ICSFT; Art 22 CERD.

15 See, eg, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russia), Application Instituting Proceedings (16 January 2017) [1]–[4].

16 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945), 1 UNTS XVI; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), 999 UNTS 171.

17 Case Concerning Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation), Memorial (Submitted by Ukraine) (12 June 2018) [614].

18 ibid [613], [625]–[626].

19 ibid [296]–[318]; Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation), Order (Provisional Measures) (19 April 2017) [66], [68].

20 Case Concerning Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation), Preliminary Objections (Submitted by the Russian Federation): Vol I, [126]–[227].

21 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits Judgment) [2007] ICJ Rep 43, [166] (‘[i]t would be paradoxical if States were under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs … In short, the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide’).

22 For an articulation of the opposing views on this, see Memorial (Ukraine) (n 17) [306]–[307]; Preliminary Objections (Russia) (n 20) [199]–[209].

23 Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v Russian Federation), PCA Case No 2017-06, Proceedings Commenced 16 September 2016.

24 Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v Russian Federation), Case No 26 (ITLOS), Request for the Prescription of Provisional Measures (Order) (25 May 2019).

25 In the case of the November 2018 UNCLOS proceedings, Ukraine emphasises that its claims are agnostic as to where sovereignty over Crimea lies: Case Concerning the Detention of Three Ukrainian Vessels (Ukraine v Russian Federation), ITLOS/PV.19/C26/1, Verbatim Record (10 May 2019) 13. Though note Russia's disagreement on this point: Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v The Russian Federation), Case No 26 (ITLOS), Provisional Measures (Memorandum of the Government of the Russian Federation) (7 May 2019) 15 (fn 58).

26 For a list of Ukraine's claims in this case, see In the Matter of a Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v The Russian Federation), PCA Case No 2017-06, Written Observations and Submissions of Ukraine on Jurisdiction (27 November 2001), [23].

27 See, eg, North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment (Merits) [1969] ICJ Rep 3, [96]; Aegean Sea Continental Shelf (Greece v Turkey) [1978] ICJ Rep 3, [186].

28 See (n 25).

29 In the Matter of a Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v The Russian Federation), PCA Case No 2017-06, Rejoinder of Ukraine on Jurisdiction (28 March 2019) [10]–[11] (arguing instead that Russia has no plausible claim to Crimea and thus that there is no true dispute over its status).

30 See ECtHR Press Release, ‘ECHR to Adjourn Some Individual Applications on Eastern Ukraine Pending Grand Chamber Judgment in Related Inter-State Case’, ECHR 432 (2018), 17 December 2018.

31 Ukraine v Russia (re Crimea), App No 20958/14; Ukraine v Russia (re Eastern Ukraine), App No 8019/16.

32 Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953), 213 UNTS 221.

33 ECtHR Press Release, ‘European Court of Human Rights Deals with Cases concerning Crimea and Eastern Ukraine’, ECHR 345 (2014), 26 November 2014; ECtHR Press Release, ‘European Court of Human Rights communicates to Russia to inter-State case concerning events in Crimea and Eastern Ukraine’, ECHR 296 (2015), 1 October 2015.

34 Ukraine v Russia (II), App No 43800/14; see ECtHR Press Release, ‘European Court of Human Rights deals with cases concerning Crimea and Eastern Ukraine’, ECHR 345 (2014), 26 November 2014.

35 Ukraine v Russia (VII), App No 38334/18; see ECtHR Press Release, ‘New Inter-State Application Brought by Ukraine against Russia’, ECHR 277 (2018), 27 August 2018.

36 Ukraine v Russia (VIII), App No 55855/18; see ECtHR Press Release, ‘ECHR puts questions to Russian Government after receiving new inter-State case from Ukraine concerning events in the Sea of Azov’, ECHR 412 (2018), 30 November 2018.

37 ECtHR Press Unit, Armed Conflicts (May 2018) 17, available at <https://www.echr.coe.int/Documents/FS_Armed_conflicts_ENG.pdf>.

38 Ioppa et al. v Ukraine, App Nos 73776/14, 974/15, 4407/15, 4412/15.

39 Ayley and others v Russia, Angline and others v Russia, App Nos 25714/16 and 56328/18.

40 ECtHR Press Release, ‘ECHR to Adjourn Some Individual Applications on Eastern Ukraine Pending Grand Chamber Judgment in Related Inter-State Case’, ECHR 432 (2018), 17 December 2018 (recognising the need to determine which state has Article 1 jurisdiction in eastern Ukraine, and adjourning individual applications concerning the region until the jurisdictional issue is addressed in Ukraine v Russia (re Eastern Ukraine), App No 8019/16); Ayley and others v Russia, Angline and others v Russia, App Nos 25714/16 and 56328/18, Communication dated 3 April 2019 (asking the parties on what basis Russia exercised jurisdiction in eastern Ukraine).

41 Ilaşcu et al. v Moldova & Russia, App No 48787/99, Judgment of 8 July 2004 (Grand Chamber); Catan v Moldova & Russia, 43370/04, 8252/05, 18454/06, Judgment of 19 October 2012 (Grand Chamber); Sandu and others v Moldova and Russia, App No 21034/05 and others, Judgment of 17 July 2018; M Milanović and T Papić, ‘The Applicability of the ECHR in Contested Territories’ (2018) 67 ICLQ 779, 789.

42 The leading case on this remains Al-Skeini et al. v United Kingdom, App No 55721/07, Judgment of 7 July 2011 (Grand Chamber).

43 Ilaşcu (n 41) [330]–[331]; Catan (n 41) [109]–[110]; Sandu (n 41) [34]–[35]. For critiques of the concept of residual jurisdiction, see Milanović and Papić (n 41); Raible, L, ‘Title to Territory and Jurisdiction in International Human Rights Law: Three Models for a Fraught Relationship’ (2018) 31 LJIL 315.

44 The Strasbourg Court has explicitly employed IHL to interpret the Convention in the context of an international armed conflict in Hassan v United Kingdom, App No 29750/09, Judgment of 10 September 2014 (Grand Chamber).

45 The Court in Hassan v United Kingdom held that it would only consider such questions of IHL if specifically pleaded: ibid [107].

46 I am very grateful to Nicolas Lamp for discussions that have informed this section.

47 Ukraine–Measures Relating to Trade in Goods and Services (Russia), DS525; Russia–Measures Concerning the Importation and Transit of Certain Ukrainian Products (Ukraine), DS532.

48 Russia–Measures Concerning Traffic in Transit (Ukraine) [2019] WT/DS512/R (Panel Report); Ukraine–Anti-Dumping Measures on Ammonium Nitrate (Russia) [2018] WT/DS493/R (Panel Report); Russia–Measures Affecting the Importation of Railway Equipment and Parts Thereof (Ukraine) [2018] WT/DS499/R (Panel Report).

49 Russia–Traffic in Transit (n 48) [7.27]–[7.149].

50 The panel rejected the self-judging view of Article XXI GATT: ibid. See the different views on this in the third party submissions: Russia–Measures Concerning Traffic in Transit (DS512), European Union Third Party Written Submission (8 November 2017); Russia–Measures Concerning Traffic in Transit (DS512), Third Party Oral Statement of the United States (25 January 2018). More generally, see RP Alford, ‘The Self-Judging WTO Security Exception’ [2011] UtahLRev 697; Yoo, JY and Ahn, D, ‘Security Exceptions in the WTO System: Bridge or Bottle-Neck for Trade and Security?’ (2016) 19 JIEL 417; Akande, D and Williams, S, ‘International Adjudication on National Security Issues: What Role for the WTO?’ (2003) 43 VaJIntlL 365.

51 The panel in Russia–Traffic in Transit (n 48) at [7.132] held the chapeau of art XXI(b) to be subject to the principle of good faith. The WTO Appellate Body has previously held that the principle of good faith and the doctrine of abus de droit are embodied in the chapeau of art XX GATT: United States–Import Prohibition of Certain Shrimp and Shrimp Products (United States), WT/DS58/AB/R (12 October 1998) [158].

52 Memorial (Ukraine) (n 17) [613], [625]–[626].

53 Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait, Written Observations and Submissions of Ukraine on Jurisdiction (n 26) [32]; Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait, Rejoinder of Ukraine on Jurisdiction (n 29) 13 (fn 56).

54 Russia–Traffic in Transit (n 48) [7.121].

55 At the time of writing, nine cases have been registered with the PCA and/or reported: NJSC Naftogaz of Ukraine (Ukraine) et al v The Russian Federation, PCA Case No 2017-16, Proceedings Commenced 17 October 2016; Everest Estate LLC et al. v The Russian Federation, PCA Case No 2015-36, Proceedings Commenced 19 June 2015; PJSC Ukrnafta v The Russian Federation, PCA Case No 2015-34, Proceedings Commenced 15 June 2015; Stabil LLC et al. v The Russian Federation, PCA Case No 2015-35, Proceedings Commenced 15 June 2015; Limited Liability Company Lugzor et al. v The Russian Federation, PCA Case No 2015-29, Proceedings Commenced 26 May 2015; PJSC CB PrivatBank and Finance Company Finilon LLC v The Russian Federation, PCA Case No 2015-21, Proceedings Commenced 13 April 2015; Aeroport Belbek LLC and Mr. Igor Valeriecich Kolomoisky v The Russian Federation, PCA Case No 2015-07, Proceedings Commenced 13 January 2015. The other two cases, Oschadbank v Russian Federation and DTEK Krymenergo v Russian Federation, are reported: see, respectively, LE Peterson, ‘In the First of a Possible Wave of BIT Claims by Ukraine State-Owned Entities Against Russia, An UNCITRAL Tribunal is Finalized’ IAReporter (14 August 2016); ‘Russian BIT Claims: Recent Developments in Arbitrations Against the Russian Federation’ IAReporter (13 April 2017).

56 Agreement between the Government of the Russian Federation and the Cabinet of Ministers of the Ukraine on the Encouragement and Mutual Protection of Investments (adopted 27 November 1998, entered into force 27 January 2000) 7 Bulletin of International Treaties 18.

57 See, eg, ‘Ukraine's Naftogaz Files BIT Arbitration Against Russia’ IAReporter (19 October 2016); PCA Press Release, ‘Arbitration between Everest Estate LLC and Others as Claimants and the Russian Federation’ (9 August 2016); PCA Press Release, ‘Arbitration between PJSC Ukrnafta as Claimant and the Russian Federation–Arbitration between Stabil LLC and Ten Others as Claimants and the Russian Federation’ (2 May 2016); PCA Press Release, ‘Arbitration between Aeroport Belbek LLC and Mr. Igor Valerievich Kolomoisky as Claimants and the Russian Federation’ (6 January 2016).

58 See, eg, PCA Press Release (6 January 2016) (n 57).

59 Art 9 of the 1998 BIT (on investor–State dispute settlement) and Art 10 of the 1998 BIT (on inter-State dispute settlement).

60 See, eg, PCA Press Release, ‘Arbitration between PJSC Ukrnafta as Claimant and The Russian Federation – Arbitration between Stabil LC and Ten Others as Claimants and The Russian Federation’ (4 August 2016); PCA Press Release, ‘Arbitration between Everest Estate LLC and Others as Claimants and the Russian Federation’ (13 January 2017).

61 ‘Ukraine's Naftogaz Files BIT Arbitration Against Russia’ (n 57); Peterson (n 55).

62 See especially arts 1(1), 2(1), 4 and 5(1) of the 1998 BIT.

63 I am very grateful to Rogier Bartels for discussions that have informed this section.

64 UN Security Council Draft Resolution, S/2015/562, 29 July 2015. For details of the vote, see UN Security Council Press Release, ‘Security Council Fails to Adopt Resolution on Tribunal for Malaysia Airlines Crash in Ukraine, Amid Calls for Accountability, Justice for Victims’, SC/11990 (29 July 2015).

65 Criminal investigations in the Netherlands have led to charges being brought against four individuals (three of whom are Russian nationals), with trials reportedly due to the start there (likely in absentia) in March 2020: see L Harding, ‘Three Russians and One Ukrainian to Face MH17 Murder Charges’ The Guardian (19 June 2019).

66 See, eg, Lemnitzer, JM, ‘International Commissions of Inquiry and the North Sea Incident: A Model for a MH17 Tribunal?’ (2016) 27 EJIL 923 (invoking the North Sea Incident Commission of 1905 as precedent for a legally-oriented international commission of inquiry); Williams, S, ‘MH17 and the International Criminal Court: A Suitable Venue?’ (2016) 17 MelbJIntlL 210.

67 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002), 2187 UNTS 3.

70 Art 53(1) of the Rome Statute.

71 At the time of writing, the most recent outline of the process is OTP, Report on Preliminary Examination Activities 2018, [59]–[98].

72 Arts 12(2)(a) and 12(3) of the Rome Statute. Ukraine's art 12(3) declaration grants the Court jurisdiction over acts ‘committed in the territory of Ukraine’: see (n 69).

73 OTP, Report on Preliminary Examination Activities 2016, [154].

74 ibid [158] (emphasis added). See also OTP, Report on Preliminary Examination Activities 2018, [68].

75 OTP, Report on Preliminary Examination Activities 2016, [168]. Those conditions are that the violence must have reached a certain level of intensity and that the non-State armed groups must be sufficiently organised: Sivakumaran, S, The Law of Non-International Armed Conflict (Oxford University Press 2012) 164–80.

76 OTP, Report on Preliminary Examination Activities 2016, [169].

77 ibid [170]. See also OTP, Report on Preliminary Activities 2018, [73]. On the modalities by which a non-international armed conflict becomes internationalised, see Mačák, K, Internationalized Armed Conflicts in International Law (Oxford University Press 2018).

78 OTP, Report on Preliminary Examination Activities 2017, [83].

79 See text to (n 15).

80 On filing its application to the Court, Ukraine also filed a request for the indication of provisional measures relating to Russia's compliance with both the CERD and ICSFT. After finding prima facie jurisdiction under both treaties, it went on to indicate certain provisional measures concerning the CERD, but held that Ukraine had not met the plausibility of claims requirement for the indication of provisional measures concerning the ICSFT. See Ukraine v Russia, Order (Provisional Measures) (n 19).

81 ibid [16].

82 See, eg, Bosnia v Serbia (n 21) [147] (‘[t]he jurisdiction of the Court in this case is based solely on Article IX of the Convention … It follows that the Court may rule only on the disputes between the Parties to which that provision refers … It has no power to rule on alleged breaches of other obligations under international law, not amounting to genocide, particularly those protecting human rights in armed conflict.’) Similarly, see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment [2015] ICJ Rep 3, [85]; Jadhav Case (India v Pakistan) [2019] Judgment (Merits) of 17 July 2019, [36].

83 On the limiting effect of jurisdictional clauses, see Cannizzaro and Bonafé (n 1); Papadaki, M, ‘Compromissory Clauses as the Gatekeepers of the Law to be ‘Used’ in the ICJ and the PCIJ’ (2014) 6 JIDS 560; Tams (n 1); Bartels, L, ‘Applicable Law and Jurisdiction Clauses: Where Does a Tribunal Find the Principal Norms Applicable to the Case Before It?’ in Broude, T and Shany, Y (eds), Multisourced Equivalent Norms in International Law (Hart 2011); Rosenne, S, The Law and Practice of the International Court of Justice 1920–2005 (Martinus Nijhoff 2006) 648–9.

84 Croatia v Serbia (n 82) [85] (‘[t]hat does not prevent the Court from considering, in its reasoning, whether a violation of international humanitarian law or international human rights law has occurred to the extent that this is relevant for the Court's determination of whether or not there has been a breach of an obligation under the Genocide Convention’). Similarly, see: Jadhav Case (n 82) [37]; Case Concerning Oil Platforms (Islamic Republic of Iran v United States) Judgment (Merits) [2003] ICJ Rep 161, [42]; Case Concerning Certain German Interests in Polish Upper Silesia (Germany v Poland), Judgment (Preliminary Objections) [1925] PCIJ (Ser A) No 6, 18.

85 Bartels (n 83).

86 See also Papadaki (n 83) 569–76; A Gourgourinis, ‘The Distinction between Interpretation and Application of Norms in International Adjudication’ (2011) 2 JIDS 31. Though note that Papadaki (n 83) at 576 still demonstrates the limitations placed by the compromissory clause on the extraneous rules that can enter the adjudicative process via interpretation.

87 See text to (n 2).

88 See, eg, the critique in Oil Platforms (n 84), Separate Opinion of Judge Higgins, [49]; Oil Platforms, ibid, Separate Opinion of Judge Buergenthal, [29]; Green, JA, ‘The Oil Platforms Case: An Error in Judgment?’ (2004) 9 JCSL 357, 375–7.

89 Preliminary Objections (Russia) (n 20) [4] (references omitted).

90 ibid [129].

91 ibid [295].

92 ibid [320].

93 Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Preliminary Objections of the Russian Federation (Vol 1), 1 December 2009, [3.10].

94 ibid [2.3].

95 Similar jurisdictional objections have been made by respondents in previous cases: eg the UK's objections in Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom), Judgment (Preliminary Objections) [1998] ICJ Rep 9, [24]–[25]; ibid, Dissenting Opinion of Judge Sir Robert Jennings (supporting the UK's position that the case was wrongly brought under the Montreal Convention and thus that the Court lacked jurisdiction); Iran's objections in Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v Iran), Judgment (Merits) [1980] ICJ Rep 3, [37]; the US’ objections in Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States), Judgment (Jurisdiction and Admissibility) [1984] ICJ Rep 392, [104]–[105]; the US’ objections in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v United States), Order (3 October 2018) [34]–[35]; France's objections in Immunities and Criminal Proceedings (Equatorial Guinea v France), Judgment (Preliminary Objections) (6 June 2018) [60]–[61], [65]; Chile's objections in Obligation to Negotiate Access to the Pacific Ocean (Bolivia v Chile), Judgment (Preliminary Objection) [2015] ICJ Rep 592, [28]; Canada's objections in Fisheries Jurisdiction Case (Spain v Canada), Judgment (Preliminary Objections) [1998] ICJ Rep 432, [26]–[27]; the US’ objections in Case Concerning Oil Platforms (Iran v United States), Preliminary Objection Submitted by the United States (16 December 1993) [3.01].

96 Ukraine v Russia, Order (Provisional Measures) (n 19) [70].

97 ibid [29]–[31].

98 See, eg, United States v Iran (n 95) [37]; Nicaragua v United States (n 95) [104]–[105]; Application of the Interim Accord of 13 September 1995 (the Former Yugoslav Republic of Macedonia v Greece), Judgment (Merits) [2011] ICJ Rep 644, [37]; Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Judgment (Preliminary Objections) [2011] ICJ Rep 70, [32]; Bolivia v Chile (n 95) [32]–[34]; Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v United States), Order (3 October 2018) [38]; Case Concerning Oil Platforms (Iran v United States) [1996] ICJ Rep 803, Judgment (Preliminary Objections), [18]–[21].

99 Mexico–Tax Measures on Soft Drinks and Other Beverages, WT/DS308/AB/R (6 March 2006) [56].

100 Lang, A, ‘Twenty Years of the WTO Appellate Body's ‘‘Fragmentation Jurisprudence”’ (2015) 14 JITL&P 116, 117.

101 See text to (nn 52–54).

102 It is clear that the Appellate Body has in previous jurisprudence drawn on non-WTO rules to interpret WTO rules: see, eg, United States–Shrimp (n 51) [127]–[134]; EC–Bananas III, WT/DS27/AB/R (27 September 1997) [167]. On this, see L Bartels, ‘Jurisdiction and Applicable Law in the WTO’ (2016), Society of International Economic Law, Fifth Biennial Global Conference Working Paper No 2016/18; Pauwelyn, J, ‘How to Win a World Trade Organization Dispute Based on Non-World Trade Organization Law? Questions of Jurisdiction and Merits’ (2003) 37 JWT 997.

103 Russia–Traffic in Transit (n 48) [7.121] (‘[t]he Panel notes that it is not relevant to this determination which actor or actors bear international responsibility for the existence of this situation to which Russia refers. Nor is it necessary for the Panel to characterize the situation between Russia and Ukraine under international law in general.’) Similarly, see Russia–Railway Equipment (n 48) [7.210].

104 R Kabra, ‘Crimea-Related Lugzor v. Russia Arbitration Clears Jurisdictional Hurdles’ IAReporter (13 December 2017) (on the Limited Liability Company Lugzor et al. v The Russian Federation (n 55) tribunal); LE Peterson, ‘In Jurisdiction Ruling, Arbitrators Rule that Russia is Obliged under BIT to Protect Ukrainian Investors in Crimea Following Annexation’ IAReporter (9 March 2017) (on the Aeroport Belbek LLC et al. v The Russian Federation (n 55) and PJSC CB Privatbank and Finance Company Finilon LLC v The Russian Federation (n 55) tribunals); J Hepburn, ‘Investigation: Full Jurisdictional Reasoning Comes to Light in Crimea-Related BIT Arbitration vs. Russia’ IAReporter (9 November 2017) (on the Everest Estate LLC et al. v The Russian Federation (n 55) tribunal); J Hepburn and R Kabra, ‘Investigation: Further Russia Investment Treaty Decisions Uncovered, Offering Broader Window into Arbitrators’ Approaches to Crimea Controversy’ IAReporter (17 November 2017) (on the PJSC Ukrnafta v The Russian Federation (n 55) and Stabil LLC et al. v The Russian Federation (n 55) tribunals).

105 Everest Estate LLC et al. v Russia (n 55), on which see LE Peterson, ‘Russia Held Liable in Confidential Award for Expropriation of Hotels, Apartments and Other Crimean Real Estate; Arbitrators Award Approximately $150 Million (Plus Legal Costs) for Breach of Ukraine Bilateral Investment Treaty’ IAReporter (9 May 2018); Oschadbank v Russia, on which see ‘Russian Federation Is Hit with $1.3 Billion UNCITRAL Bilateral Investment Treaty Award’ IAReporter (26 November 2018); Belbek & Kolomoisky v Russia and PJSC CB PrivatBank & Finilon v Russia (n 55), on which see LE Peterson, ‘Russia Held Liable for Expropriation of Bank Operations in Billion Dollar Arbitration, As Well As of Airport’ IAReporter (15 February 2019); NJSC Naftogaz v Russia (n 55), on which see D Charlotin, ‘In New BIT Ruling, Russia Found Liable for Expropriation of Naftogaz Assets’ IAReporter (1 March 2019); PJSC Ukrnafta v Russia and Stabil v Russia (n 55), on which see LE Peterson, ‘As Russia is Held Liable in Two New BIT Cases, and Ordered to Pay Upwards of $100 Million, We Round-up Developments in Crimea-Related Arbitrations’ IAReporter (16 April 2019).

106 This is similar to the Strasbourg Court's interpretation of art 1 ECHR jurisdiction, which it views as including territory over which a State exercises effective control, eschewing (in theory) the need to consider questions of sovereignty: Al-Skeini (n 42).

107 Peterson, ‘In Jurisdiction Ruling’ (n 104); Hepburn and Kabra, ‘Investigation: Further Russia Investment Treaty Decisions Uncovered’ (n 104).

108 Hepburn and Kabra, ‘Investigation: Further Russia Investment Treaty Decisions Uncovered’, ibid.

109 See the outline of the award given in Russia v A et al. (Beschwerde gegen den Zwischenentscheid des Schiedsgerichts mit Sitz in Genf vom 26 Juni 2017 (Nr. 2015-35)) (Swiss Federal Tribunal), 4A_398/2017, Judgment of 16 October 2018, [4.2] (judgment in German).

110 Hepburn, ‘Investigation: Full Jurisdictional Reasoning’ (n 104) (in the Everest Estate LLC et al. v The Russian Federation (n 55) case); Peterson, ‘In Jurisdiction Ruling’ (n 104) (in the Aeroport Belbek LLC et al. v The Russian Federation (n 55) and PJSC CB Privatbank and Finance Company Finilon LLC v The Russian Federation (n 55) cases).

111 Russia v A et al. (n 109) [4.3.2]; Russia v A (Beschwerde gegen den Zwischenentscheid des Schiedsgerichts mit Sitz in Genf vom 26 Juni 2017 (PCA Nr. 2015-34)), 4A_396/2017, Judgment of 16 October 2018 (Swiss Federal Tribunal) [4.3.2] (judgment in German). For discussion, see L Bohner, ‘In Now-Public Decisions, Swiss Federal Tribunal Clarifies Reasons for Dismissing Challenges to Two Crimea-Related Investment Treaty Awards Against Russia’ IAReporter (16 November 2018).

112 Reports of the Everest Estate LLC et al. v The Russian Federation (n 55) jurisdictional decision suggest a slightly different emphasis in the reasoning, such that the tribunal determined that the 1998 BIT applies to Crimea on the basis that no party explicitly objected: Jarrod Hepburn, ‘Investigation: Full Jurisdictional Reasoning’ (n 104). The Ukrainian Supreme Court upheld enforcement of the final Everest award in Ukraine: LE Peterson, ‘Russia Held Liable for Expropriation of Bank Operations in Billion Dollar Arbitration, As Well As of Airport’ IAReporter (15 February 2019). Russia's request to stay the enforcement of the awards was also refused by the Hague Court of Appeal, which specifically noted that the investment claims can be resolved without giving an opinion on the status of Crimea: The Russian Federation v Everest Estate LLC et al., Case No 200.250.714-01, Judgment of 11 June 2019 (in Dutch).

113 See text to (nn 97–98).

114 Aegean Sea (n 27) [83]–[86] (concerning a reservation to Greece's acceptance of the compromissory clause, which excluded any ‘dispute relating to the territorial status of Greece’; the Court held Greece's application to fall within this reservation, given that it concerned a dispute over continental shelf rights, which necessarily implicated territorial rights).

115 Interim Accord (n 98) [37] (though the Court upheld jurisdiction, stating that ‘a relationship between the dispute submitted to the Court and the name difference [the subject of a reservation to the compromissory clause] does not suffice to remove that dispute from the Court's jurisdiction’, it is included here as the Court explicitly recognised that ‘if the Court were called upon to resolve specifically the name difference, or to express any views on this particular matter’, then it would lack jurisdiction over the entire case); Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) [2008] ICJ Rep 12, [297]–[299] (the Court declined to determine the sovereignty over South Ledge, a low-tide elevation, as this would require it to delimit the territorial waters of Malaysia and Singapore, and the special agreement granting the Court jurisdiction referred only the sovereignty dispute to the Court).

116 Tzeng (n 12).

117 Case of the Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom, and United States), Judgment (Preliminary Objections) [1954] ICJ Rep 19, 32–3; Case Concerning Certain Phosphate Lands in Naura (Nauru v Australia), Judgment (Preliminary Objections) [1992) ICJ Rep 240, [49]–[55]; Case Concerning East Timor (Portugal v Australia), Judgment [1995] ICJ Rep 90, [34]–[35].

118 See text to (nn 89–92).

119 See text to (n 98).

120 Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v The Russian Federation), Preliminary Objections of the Russian Federation: Vol I (19 May 2018) [42]. See also Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v The Russian Federation), Reply of the Russian Federation to the Written Observations and Submissions of Ukraine on Jurisdiction: Vol I (28 January 2019) [16].

121 UNCLOS, art 288(1); Ukraine v The Russian Federation, Preliminary Objections of the Russian Federation, ibid [47]. In addition to its principal objection concerning the character of the dispute, Russia puts forward further preliminary objections, including its claim that the Sea of Azov and Kerch Strait are internal waters and its view as to the interpretation of the art 298 UNCLOS declarations that both Ukraine and Russia have made: Ukraine v The Russian Federation, Preliminary Objections of the Russian Federation (n 120).

122 For analysis, see Buga, I, ‘Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunals’ (2012) 27 International Journal of Marine and Coastal Law 59; Volterra et al. (n 12); Tzeng, P, ‘Ukraine v. Russia and Philippines v. China: Jurisdiction and Legitimacy’ (2017) 46 DenverJIntlL&Pol'y 1.

123 Commentators are divided on whether UNCLOS tribunals can make incidental determinations regarding territorial disputes as part of an UNCLOS claim. See, eg, R Wolfrum, Statement to the Informal Meeting of Legal Advisers of Ministries of Foreign Affairs, New York (23 October 2006); Treves, T, ‘What Have The United Nations Convention and The International Tribunal for the Law of the Sea To Offer As Regards Maritime Delimitation Disputes?’ in Lagoni, R and Vignes, D (eds), Maritime Delimitation (Martinus Nijhoff 2006) 77; Oxman, BH, ‘The Third United Nations Conference on the Law of the Sea: The Ninth Session’ (1981) 75 AJIL 211, 233; S Talmon, ‘The South China Sea Arbitration: Is There a Case to Answer?’ in S Talmon and BB Jia (eds), The South China Sea Arbitration: A Chinese Perspective (2014) 46–8.

124 Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom), PCA Case No. 2011-03, Award (18 March 2015); 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 (29 October 2015).

125 Mauritius v UK, ibid [158].

126 ibid [207].

127 ibid.

128 ibid [211].

129 ibid [212].

130 ibid [220].

131 ibid [221].

132 ‘Position Paper of the Government of the People's Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines’ (2016) 16 ChineseJIL 431, 432 [3] and 439 [29].

133 Philippines v China (n 124) [150].

134 ibid [152]. This is similar to the ICJ jurisprudence cited above to the effect that it is no impediment to a legal claim that that claim forms part of a broader dispute, ie disaggregation of disputes itself is not a problem for exercising jurisdiction over specific legal claims: see, eg, Georgia v Russia (n 98) [32].

135 Philippines v China (n 124) [153].

136 ibid. Though Philippines v China could therefore be seen as promoting the severability approach to these issues, it is included here as its reasoning indicates that UNCLOS tribunals might refuse jurisdiction in certain of these cases.

137 Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait, Written Observations and Submissions of Ukraine on Jurisdiction (n 26) [13]–[60]. Similarly, see D Koval and VJ Schatz, ‘Ukraine v. Russia: Passage through Kerch Strait and the Sea of Azov, Part III: The Jurisdiction of the Arbitral Tribunal’ Volkerrechtsblog (15 January 2018).

138 Mauritius v UK (n 124) [221]. Suggesting this, see Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait, Written Observations and Submissions of Ukraine on Jurisdiction (n 26) [51].

139 Philippines v China (n 124) [152].

140 ibid [153].

141 See, eg, Georgia v Russia (n 98) [32]; Philippines v China (n 124) [152].

142 For a particularly restrictive approach to disaggregation and jurisdiction in UNCLOS proceedings, see Southern Bluefin Tuna Case (Australia and New Zealand v Japan) (Award on Jurisdiction and Admissibility), 4 August 2000 (2000) 39 ILM 1359, [54] (the Annex VII tribunal held that it would be ‘artificial’ to treat Australia and New Zealand's UNCLOS claims as separate from claims arising under a different treaty over which the tribunal did not have jurisdiction; it therefore concluded that it could not exercise jurisdiction over those UNCLOS claims due to its view as to the operation of a dispute settlement provision in that other treaty). This decision has been criticised: see, eg, Boyle, A, ‘The Southern Bluefin Tuna Arbitration’ (2001) 50 ICLQ 447.

143 Aegean Sea (n 27) [83].

144 Mauritius v UK (n 124) [220].

145 Philippines v China (n 124) [153]; Malaysia/Singapore (n 115) [297]–[299].

146 See text to (nn 40–43).

147 Loizidou v Turkey, App No 15318/89, Judgment of 18 December 1996 (Grand Chamber), [44]; Ilaşcu (n 41) [330]–[331]; Catan (n 41) [109]–[110]; Sandu (n 41) [34]–[35].

148 Ilaşcu (n 41) [392]; Catan (n 41) [122]; Sandu (n 41) [36]–[37]; Loizidou, ibid [56] (though note that here the Court did emphasise that it did not need to rule on the legality or illegality of Turkey's military intervention, thus following the severability approach in that respect).

149 See text to (nn 72–77).

150 See text to (nn 74 and 77).

151 Prosecutor v Tadić (Judgment) IT-94-1A, Appeals Chamber (15 July 1999) [98]. The ICJ disagreed, viewing the two tests as separate and without consequence for one another: Bosnia v Serbia (n 21) [403]–[405]. On this, see Jorritsma, R, ‘Where General International Law Meets International Humanitarian Law: Attribution of Conduct and the Classification of Armed Conflicts’ (2018) 23 JCSL 405.

152 Prosecutor v Germain Katanga (Judgment) ICC-01/04-01/07, Trial Chamber (7 March 2014), [1178]; Prosecutor v Jean-Pierre Bemba Gombo (Judgment) ICC-01/05-01/08, Trial Chamber (21 March 2016) [130].

153 The OTP, for the purposes of Palestine's art 12(3) declarations and accession to the Rome Statute, has simply followed the UNGA's designations of Palestine, first as an observer entity and subsequently as a non-member observer State, in determining whether Palestine is a ‘state’ for the purposes of art 12 of the Rome Statute: ICC Press Release, ‘The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine’, ICC-OTP-20150116-PR1083 (16 January 2015).

154 See, eg, Akande, D and Tzanakopoulos, A, ‘Treaty Law and ICC Jurisdiction over the Crime of Aggression’ (2018) 29 EJIL 939, 959 (acknowledging the consent-based concerns with the ICC exercising jurisdiction over the crime of aggression and thereby making incidental determinations about the responsibility of a State under international law); Tzeng (n 12) 498–9.

155 As noted, the nature of the claims in Philippines v China meant that the tribunal was able to do this, and this had been explicitly pleaded by the Philippines: Philippines v China (n 124) [153].

156 Mexico–Soft Drinks (n 99) [53]; Bartels, L, ‘Applicable Law in WTO Dispute Settlement Proceedings’ (2001) 35 JWT 499. The provisions state that the DSB, panels and the Appellate Body ‘cannot add to or diminish the rights and obligations provided in the covered agreements’.

157 See (nn 114–115).

158 See (n 115).

159 See, eg, Bartels (n 102) 11–12; N Klein, ‘The Effectiveness of the UNCLOS Dispute Settlement Regime: Reaching for the Stars?’ (2014) ASIL Proc 359, 363.

160 Art 32 ECHR (‘[t]he jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto’).

161 Romano, CPR, ‘A Taxonomy of International Rule of Law Institutions’ (2011) 2 JIDS 241, 265. For a similar taxonomy, see Keohane, RO, Moravcsik, A and Slaughter, A-M, ‘Legalized Dispute Resolution: Interstate and Transnational’ (2000) 54 IntlOrg 457.

162 Hernández, GI, The International Court of Justice and the Judicial Function (Oxford University Press 2014) 40 (‘[t]he Permanent Court transcended, at least partially, the substantially arbitral form of the Permanent Court of Arbitration, but retained a residual element of arbitral dispute-resolution in the consent required for it to take jurisdiction. The present International Court, with the same limitation on its jurisdiction, is no different’); Bedjaoui, M, The New World Order and the Security Council: Testing the Legality of Its Acts (Martinus Nijhoff 1994) 75 (‘… conceptually, there has been no substantial evolution of the judicial function from one Court [PCIJ] to the other [ICJ]’); Kolb, R, The Elgar Companion to the International Court of Justice (Edward Elgar 2014) 24–6.

163 Lauterpacht, H, The Development of International Law by the International Court (Stevens & Sons 1958) 76 (‘… a further reason for restraint and caution in the international sphere, namely, the fact of the voluntary nature of the jurisdiction of international tribunals’); Hernández, ibid 50.

164 See text to (n 81).

165 Hernández (n 162) 54 (using the non ultra petita principle as an example of how the Court occupies this transactional position); Thirlway, H, ‘The Drafting of ICJ Decisions: Some Personal Recollections and Observations’ (2006) 5 ChineseJIL 15, 23–4; Berman, F, ‘The International Court of Justice as an ‘Agent’ of Legal Development’ in Tams, CJ and Sloan, J (eds), The Development of International Law by the International Court of Justice (Oxford University Press 2013).

166 With respect to UNCLOS, see Klein, N, ‘Expansions and Restrictions in the UNCLOS Dispute Settlement Regime: Lessons from Recent Decisions’ (2016) 15 ChineseJIL 403, 415 (noting, as Sir Christopher Greenwood did in the context of the ICJ, the tension between effective resolution of maritime disputes and adherence to the principle of consent in UNCLOS dispute resolution).

167 Weiler, J, ‘The Rule of Lawyers and the Ethos of Diplomats – Reflections on the Internal and External Legitimacy of WTO Dispute Settlement’ (2001) 35 JWT 191.

168 Lang, A, ‘Twenty Years of the WTO Appellate Body's “Fragmentation Jurisprudence”’ (2015) 14 JITL&P 116, 121. Similarly, see Pauwelyn, J, ‘The WTO 20 Years On: ‘Global Governance by Judiciary’ or, Rather, Member-driven Settlement of (Some) Trade Disputes between (Some) WTO Members?’ (2016) 27 EJIL 1119.

169 Hernández (n 162) 54.

170 Pauwelyn and Salles (n 10) 84. Similarly, see Keohane, Moravcsik and Slaughter (n 161) 479–80 (noting that so-called ‘transnational’ dispute settlement bodies (such as the ECtHR) have much greater potential for legal evolution than so-called inter-State dispute settlement bodies (such as the ICJ or WTO)).

171 Romano, CPR, ‘The Shift from the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of Consent’ (2007) 39 NYUJIntlLaw&Pol 791.

172 On the ECtHR's approach to jurisdiction generally, see Mowbray, A, ‘The Creativity of the European Court of Human Rights’ (2005) 5 HRLRev 57.

173 Shany, Y, Questions of Jurisdiction and Admissibility before International Courts (Cambridge University Press 2016) 43.

174 ibid 42.

175 See, eg, Lauterpacht (n 163) 3–7; Visscher, C de, Théories et Réalités en Droit International Public (Pedone 1970) 390; von Bogdandy, A and Venzke, I, ‘On the Functions of International Courts: An Appraisal in Light of their Burgeoning Public Authority’ (2013) 26 LJIL 49; Weeramantry, CG, ‘The Function of the International Court of Justice in the Development of International Law’ (1997) 10 LJIL 309; Hernández (n 162) 56.

176 See, eg, Certain German Interests in Polish Upper Silesia (n 84) 84 (the PCIJ applying, on one view, the expansive approach to the jurisdictional issues discussed here); Shany (n 173) 109–10 (suggesting one can see judicial activism by the ICJ in certain areas of high policy, such as use of force). And, as with other tribunals, if we broaden the analysis to include those cases in which the ICJ draws on extraneous primary rules ostensibly to interpret the principal norms that the Court has jurisdiction to apply, a much more expansive approach can be discerned: see (n 84).

177 See, eg, the line of cases relying on the applicable law clause in Article 293(1) UNCLOS as a basis for expanding the tribunals’ jurisdiction beyond UNCLOS: The M/V “Saiga” (No 2) Case (Saint Vincent and the Grenadines v Guinea), Judgment [1999] ITLOS Rep 10, Case No 2, [153]–[159]; Guyana v Suriname, PCA Case No 2004-04, Award (17 September 2007) [402]–[406]; The M/V “Virginia G” Case (Panama/Guinea-Bissau), Judgment [2014] ITLOS Rep 4, Case No 19, [350]–[362]; for discussion, see Tzeng, P, ‘Jurisdiction and Applicable Law Under UNCLOS’ (2016) 126 YaleLJ 242. See also Klein (n 166) 406–7, 412–13 (on the more expansive aspects of the Philippines v China award regarding its jurisdiction in other respects).

178 See, eg, Cass, DZ, ‘The “Constitutionalization” of International Trade Law: Judicial Norm-Generation as the Engine of Constitutional Development in International Trade’ (2001) 12 EJIL 39 (on the contribution of the Appellate Body to the development of constitutional norms in trade law); G Messenger, ‘Claiming Judicial Authority at the WTO: Submitting Diplomacy and Economics to Law’ in G Hernández and G Jokubauskaite (eds), Constructing Authority in International Law (Oxford University Press, forthcoming) (draft on file with author) (on the Appellate Body's construction of its own judicial authority and its dominance vis-à-vis the other WTO institutions); Howse, R, ‘The World Trade Organization 20 Years On: Global Governance by Judiciary’ (2016) 27 EJIL 9 (on the Appellate Body's jurisprudential moves that transformed it into a judiciary independent of the other WTO institutions and their neo-liberal ‘deep integration’ philosophy).

179 See, eg, Loizidou (n 147) [56] (the Court following the severability approach when noting that it did not need to rule on the legality or illegality of Turkey's military intervention). There is a rich and diverse literature on the nature of the ECtHR: see, eg, Greer, S and Wildhaber, L, ‘Revisiting the Debate about ‘constitutionalizing’ the European Court of Human Rights’ (2012) 12 HRLRev 655; Helfer, LR, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008) 19 EJIL 125.

180 See also Webb (n 10) 147–72 (noting different ways in which the identity of an international tribunal affects its approach to integration and fragmentation across international law).

181 See the quote from Shany at text to (n 173).

182 See text to (nn 155–158).

183 See text to (n 140).

184 I refer here to those cases in which incidental determinations of law have been justified as necessary for interpreting the principal applicable norms: see, eg, those ICJ cases noted at (n 84). Indeed, even the severability approach of the Appellate Body in Mexico–Soft Drinks has been criticised on this basis: Lang (n 100) 117; Bartels (n 102) 19.

185 Hence the ICJ's general support for the severability approach: see text to (nn 96–98). The criticisms of the Southern Bluefin Tuna Case focus on the Tribunal's failure to recognise this: see (n 142).

186 Loizidou v Turkey, App No 15318/89, Judgment (Grand Chamber) (Preliminary Objections) (23 March 1995) [93] (on the severability of an invalid reservation from a contracting party's ratification of the Convention).

187 Again, the criticisms of the Court's Oil Platforms judgment illustrates this point well: see text to (n 88). It has been suggested that the difference between perceived legitimate and illegitimate incidental determinations might in part be one of form: Bartels (n 102) 19 (on the Oil Platforms case, ‘[t]he problem in that case was not the anterior determination. It was that the determination was arguably unnecessary, and also that the determination was included in the operative provisions of the judgment, even though it was on a topic that was not included in the substantive jurisdiction of the Court.’)

188 See Tzeng (n 12).

189 Bartels (n 102) 11–12 (‘[i]t may be thought that such questions involve the application of rules of ‘international procedural law’. However, the better view might be that such rules are internal to the WTO’).

190 See, eg, Klein (n 159) 362 (in the context of UNCLOS dispute settlement); Jackson, JH, World Trade and the Law of GATT (Bobbs-Merrill Company 1969) 767 (in the context of GATT dispute settlement).

191 On the risks and problems associated with forum-shopping, see, eg, Pauwelyn and Salles (n 10) 80–3.

192 Preliminary Objections (Russia) (n 20) [296]. A similar point has been raised by Russia in respect of Ukraine's request for interim relief before both the ECtHR and ITLOS following the November 2018 incident in the Kerch Strait: Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v The Russian Federation), Memorandum of Russia (n 25) [40].

193 Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait, Reply of the Russian Federation (n 120) [35]. The same argument was made by China in response to the Philippines’ UNCLOS claims: Philippines v China (n 124) [124]–[129].

194 On the possibility of applying such concepts in international law, see Pauwelyn and Salles (n 10); Oellers-Frahm (n 10); McLachlan, C, Lis Pendens in International Litigation (Brill 2009); Lowe, AV, ‘Overlapping Jurisdiction in International Tribunals’ (1999) 20 AustYBIL 191.

I am very grateful to the editors and the anonymous reviewers for their very constructive feedback. An earlier version of this article was presented at the Faculty of Law, University of Oslo in September 2018; I am very grateful for comments received there.

Keywords

INTERNATIONAL LITIGATION AND THE DISAGGREGATION OF DISPUTES: UKRAINE/RUSSIA AS A CASE STUDY

  • Lawrence Hill-Cawthorne (a1)

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