What issues can international courts and tribunals decide?

By Callista Harris|17 February 2020
Court room

University of Sydney Law School PhD candidate Callista Harris recently received a prestigious international prize for the first part of her PhD research, dealing with the limits on the jurisdiction of international courts and tribunals. Here, Ms Harris talks about her PhD research and the article for which she received the prize.

International dispute settlement is consensual: no sovereign state can, without its consent, be compelled to submit disputes to any kind of dispute settlement. Nonetheless, many states consent to the settlement of disputes relating to certain treaties or certain areas of international law.

For example, states that ratify the United Nations Convention on the Law of the Sea consent to third-party settlement of disputes concerning the “interpretation or application” of the Law of the Sea Convention.

Disputes that arise between states, however, do not fit neatly into one treaty or one area of international law. To extend the above example, disputes between states concerning the law of the sea will not only concern the law of the sea, but will also involve other issues of international law.

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Such “external” issues may be peripheral, but, in some cases, an external issue may be central to or even the crux of a particular dispute. Indeed, an applicant state might raise an external issue before a court or tribunal because it is the only forum in which the issue can be raised – in particular, in situations where the respondent state has not consented to third-party settlement of disputes relating to the “external issue.

My research considers what international courts and tribunals should do when faced with such situations. Can courts and tribunals with jurisdiction limited to a specific treaty or area of international law – such as the law of the sea – decide external issues, such as sovereignty? If so, what are the limits on their competence in this regard?

A well-known arbitration tested these questions. In the Law of the Sea Convention arbitration between the UK and Mauritius relating to the Chagos Archipelago, the tribunal declined to hear certain claims brought by Mauritius because, in the tribunal’s view, the dispute between Mauritius and the UK was really about sovereignty, not about the law of the sea – the tribunal’s area of international law. In my article, I argue that the approach taken by the tribunal in this arbitration is incorrect.

These questions have also arisen in a number of more recent, and still pending, proceedings. For example, Ukraine has brought proceedings against Russia under several treaties, including the Law of the Sea Convention, which raise external issues relating to sovereignty over Crimea.

Qatar has brought proceedings against a number of states under a convention relating to civil aviation, in connection with the 2017 blockade imposed on it, which raise external issues relating to Qatar’s alleged support of terrorism. Iran has brought proceedings against the US under a 1955 treaty of friendship, which raise external issues relating to the Iran nuclear deal.

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While it remains to be seen exactly what will be decided in these pending cases, I argue that the international courts and tribunals convened to decide these cases should not follow the approach of the tribunal in the Chagos Arbitration.

Callista Harris is a PhD candidate at the University of Sydney Law School and acts as counsel before international courts and tribunals. Ms Harris’ publication, Claims with an Ulterior Purpose: Characterising Disputes Concerning the “Interpretation or Application” of a Treaty, for which she received the 2019 Rosalyn Higgins Prize, is available in the Law & Practice of International Courts and Tribunals.

What issues can international courts and tribunals decide?
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