The Doctrine of Indispensable Issues: Mauritius v. United Kingdom, Philippines v. China, Ukraine v. Russia, and Beyond

On 14 September 2016, Ukraine instituted proceedings against Russia under the United Nations Convention on the Law of the Sea (UNCLOS). Ukraine is requesting that an UNCLOS tribunal declare, inter alia, that Russia has violated the Convention by interfering with Ukraine’s rights in maritime zones adjacent to Crimea.

At first, there appears to be no jurisdictional problem. Aside from the exceptions laid out in Part XV of UNCLOS, the tribunal has jurisdiction over “any dispute concerning the interpretation or application of [the] Convention” (Art. 288(1) UNCLOS), which would permit a declaration that Russia has violated the Convention. Nevertheless, such a declaration would necessarily require a preliminary determination that Ukraine still has sovereignty over Crimea (under the “land dominates the sea” principle), and the tribunal does not have jurisdiction over territorial sovereignty disputes. Therefore, the tribunal must decide whether it may still exercise jurisdiction over the dispute concerning Russia’s violation of the Convention.

Ukraine v. Russia presents what one may call the “implicated issue problem.” Generally speaking, the implicated issue problem arises when an international court or tribunal has jurisdiction over a dispute, but the exercise of such jurisdiction would implicate an issue over which the court or tribunal does not have jurisdiction ratione materiae. The court or tribunal must therefore determine whether it may still exercise jurisdiction over the dispute.

The implicated issue problem is not unique to Ukraine v. Russia. The problem arose in Mauritius v. United Kingdom, where the tribunal had to determine whether it could exercise jurisdiction over a dispute concerning a marine protected area around the Chagos Archipelago, even though the exercise of such jurisdiction would have implicated the issue of territorial sovereignty over the archipelago. The problem also arose in Philippines v. China, where the tribunal had to determine whether it could exercise jurisdiction over a dispute concerning maritime entitlements, even though the exercise of such jurisdiction arguably would have implicated issues of territorial sovereignty and maritime delimitation. The implicated issue problem could also arise in the seven ongoing investor-State arbitrations that Ukrainian investors have brought against Russia concerning investments in Crimea because the tribunals may have to decide whether the investments were made on Russian “territory.” And the problem could arise in future “mixed disputes,” where the settlement of a maritime delimitation dispute depends on a preliminary determination of an issue of territorial sovereignty.

Interestingly, the implicated issue problem is analogous to the “implicated party problem” that the doctrine of indispensable parties (embodied in the Monetary Gold principle) attempts to solve. The implicated issue problem asks whether an international court or tribunal may exercise jurisdiction over a dispute if doing so implicates an outside issue over which the court or tribunal does not have jurisdiction ratione materiae. The implicated party problem, on the other hand, asks whether an international court or tribunal may exercise jurisdiction over a dispute if doing so implicates an absent State over which the court or tribunal does not have jurisdiction ratione personae.

In fact, the Mauritius v. United Kingdom and Philippines v. China tribunals’ approach to the implicated issue problem is remarkably similar to (though not exactly the same as) the ICJ’s approach to the implicated party problem. As is now well known, in Monetary Gold, the ICJ held that it would refuse to exercise its jurisdiction if the legal interests of an absent State would form the “very subject-matter” of the decision (p. 32). And in Certain Phosphate Lands (para. 55) and East Timor (para. 28), the Court emphasized that it would normally not exercise its jurisdiction if its decision would require a logically prior determination of the legal responsibility of an absent State.

Similarly, in Mauritius v. United Kingdom, the tribunal held that it would refuse to exercise its jurisdiction if the “real issue in the case” and the “object of the claim” constituted an issue over which it did not have jurisdiction ratione materiae (Award, para. 220). And in Philippines v. China, the tribunal held that it might refuse to exercise its jurisdiction if “the resolution of the Philippines’ claims would require the Tribunal to first render a decision on sovereignty” (Award on Jurisdiction and Admissibility, para. 153). It appears, then, that a doctrine of indispensable issues similar to the doctrine of indispensable parties is emerging.

This emerging doctrine of indispensable issues could have significant consequences for Ukraine v. Russia, the Crimea investor-State arbitrations, and mixed disputes. In particular, if international courts and tribunals were to accept that they could not exercise jurisdiction over a dispute if doing so would require a logically prior determination of an issue outside their jurisdiction ratione materiae, then the Ukraine v. Russia tribunal may have to refuse to exercise jurisdiction because doing so would require a logically prior determination of who has sovereignty over Crimea (assuming that the tribunal finds the sovereignty dispute to be a legitimate dispute). For the same reason, the Crimea investor-State tribunals may also refuse to exercise jurisdiction, even though they have a few means at their disposal of avoiding this issue (e.g., by holding that the investments only need to be on territory over which Russia has effective control). As for mixed disputes, international courts and tribunals confronted with such disputes would probably be compelled to refuse to exercise jurisdiction because, arguably by definition, a mixed dispute requires a logically prior determination on an issue of territorial sovereignty.

One should, however, question whether the doctrine of indispensable parties serves as an appropriate model for dealing with the implicated issue problem. Here is a non-exhaustive list of considerations one should take into account:

• In the implicated party analysis, the principle of res inter alios acta (as enshrined in, for example, Article 59 ICJ Statute, Article 296(2) UNCLOS, and Article 33(2) ITLOS Statute) ensures that the determination of the legal responsibility of the absent State is not binding on that State. By contrast, in the implicated issue analysis, the legal determination on the outside issue may still have some binding effect on the parties.

• In the implicated party analysis, there is no indication from the absent State whether it would have consented to the international court or tribunal’s determination of its legal responsibility. On the other hand, in the implicated issue analysis, the court or tribunal could in theory examine the intent of the parties to determine whether they appeared to consent to an implicit determination of the issue allegedly outside the jurisdiction ratione materiae of the court or tribunal. For example, some scholars writing on mixed disputes have sought to determine whether the drafters of UNCLOS had intended for UNCLOS tribunals to exercise jurisdiction over the territorial sovereignty issues arising in such disputes.

• In the implicated issue analysis, the international court or tribunal may be able to rely on the relevant applicable law provision to justify its power to make the preliminary legal determination on the outside issue, as Mauritius argued in Mauritius v. United Kingdom. In the implicated party analysis, however, there is no functionally equivalent provision for the court or tribunal to rely on.

In conclusion, although the implicated issue problem is analogous to the implicated party problem, international courts and tribunals dealing with the implicated issue problem should think twice about whether they should follow the standards set forth by the ICJ for the doctrine of indispensable parties.

This is the subject of an article that the author is currently writing. He would greatly appreciate any feedback either in the comments section of this post or by email at ptzeng90 {@} gmail(.)com.