I. Introduction
It is well known that international law lacks an integrated system of international courts with general, compulsory jurisdiction. Instead, the structure of the international judiciary is decentralised, comprising multiple international courts and tribunals with differentiated jurisdictions. The consequence is often a disaggregation, or ‘compartmentalization’, of broader disputes into discrete legal claims before a range of international tribunals, each with jurisdiction to examine only those discrete claims.Footnote 1 Sir Christopher Greenwood points to this disaggregation of disputes (in the context of compromissory clauses before the International Court of Justice) as a challenge frequently faced in international litigation:
… [I]f jurisdiction can be based only upon a clause of this kind, the consequence may be that the Court has jurisdiction only in respect of one aspect of what may be a far broader dispute between the states concerned … One of the challenges for counsel in a case where the only basis for jurisdiction is a treaty dealing with a specific subject is to frame the case in such a way as to bring it within that treaty. An even greater challenge for the Court is to deal effectively with the case before it while remaining faithful to the proper interpretation of the clause which confers jurisdiction and to the fundamental principle of consent as the basis for jurisdiction.Footnote 2
The range of tribunals before which claims have been brought concerning the ongoing dispute between Ukraine and the Russian Federation exemplifies this phenomenon of disaggregation. For the purposes of this article, this broad dispute refers to two particular issues arising subsequent to the ousting of Ukrainian President Viktor Yanukovych in February 2014.Footnote 3 The first relates to Crimea and its annexation by Russia following the latter's swift occupation of the peninsula and convening of a referendum there in March 2014, in which a reported 97 per cent voted in favour of joining the Russian Federation.Footnote 4 Ukraine continues to assert its claim to sovereignty over Crimea.Footnote 5 The second issue relates to alleged Russian support for separatist movements in eastern Ukraine since 2014, including in the regions of Donetsk and Luhansk.Footnote 6
This broad dispute has been disaggregated into a number of discrete legal claims before different international tribunals.Footnote 7 At the inter-State level, Ukraine has brought proceedings against Russia before the International Court of Justice (ICJ), the European Court of Human Rights (ECtHR), and two tribunals constituted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS).Footnote 8 Five disputes between Ukraine and Russia have also made their way to the WTO dispute settlement system. With respect to mixed claims (where the parties are a mix of State and non-State actors), 4,300 individual claims are currently pending before the ECtHR that all appear related to the Ukraine/Russia dispute, and nine known investor–State arbitrations have been initiated by Ukrainian investors in Crimea against Russia. Finally, whereas the above claims all concern the invocation of State responsibility, the Ukraine/Russia dispute has also led to considerations of individual responsibility under international law. Thus, there is an ongoing preliminary examination into the situation in Crimea and eastern Ukraine by the Office of the Prosecutor of the International Criminal Court (ICC).
This article explores this phenomenon of the disaggregation of disputes in international law, employing the Ukraine/Russia dispute as a case study.Footnote 9 The topic is, to an extent, related to the issue of the multiplication of international courts and tribunals, which has been explored in detail elsewhere.Footnote 10 It is not the purpose of the present contribution to rehearse what is already covered there. Instead, the aim of this article is to use this case study to examine certain under-explored consequences of the disaggregation of disputes for the jurisdiction of tribunals. More specifically, it focuses on two questions. First, what is the relationship between the specific claims before each of the tribunals in these cases and other aspects of the broader Ukraine/Russia dispute? Second, what impact might the disaggregation of the dispute have on the jurisdiction of the tribunals? In particular, might the relationship between the specific claims before each tribunal and the broader dispute affect the jurisdiction of the tribunals over those specific claims? This is particularly pertinent, given Russia's jurisdictional objections before some of the tribunals that Ukraine's specific claims are inseparable from the broader dispute over which the tribunal lacks jurisdiction, with the consequence that the tribunal cannot exercise jurisdiction over any part of the claims.Footnote 11
Some recent scholarship examines some of the legal claims arising from the Ukraine/Russia dispute, as well as some of the jurisdictional issues addressed in this article.Footnote 12 However, the present article advances the current literature in at least two ways. First, it is more comprehensive than the previous literature on the Ukraine/Russia dispute in terms of the range of tribunals and types of claims examined. Second, and most importantly, it also goes beyond that previous literature in its treatment of the jurisdictional issues explored. In particular, this article offers an original analysis of the approach of different tribunals to the jurisdictional issues considered here, suggesting three distinct approaches to disaggregation across jurisprudence: first, the severability approach, by which a tribunal stresses the severability of the specific claims before it from any broader dispute; second, the restrictive approach, by which a tribunal views the claims before it as inseparable from that broader dispute and, as a result, declines jurisdiction even over those specific claims; and, third, the expansive approach, by which the tribunal does not attempt to sever the claims before it from the broader dispute and, instead, willingly makes incidental determinations that would otherwise be beyond its jurisdiction when ruling on the specific claims. In the final section, the article also draws these doctrinal questions of jurisdiction back to broader considerations about the role of particular tribunals and the international judicial function more generally. Though the Ukraine/Russia dispute is used a case study, it will become clear that these issues arise frequently in international litigation, and thus the present contribution offers an analysis of relevance generally to international dispute settlement.
The article is structured as follows. Section II introduces in turn the claims before each tribunal and their potential implications for the broader Ukraine/Russia dispute. Section III then elaborates on the three approaches to disaggregation and the jurisdictional questions raised above that one can draw out of the jurisprudence of different international courts and tribunals. Section IV then offers an explanation of the different approaches to these issues and, in particular, considers whether the nature of a particular tribunal might go some way in explaining its approach to these questions. Some concluding remarks will be offered in Section V.
II. The Ukraine/Russia claims and their potential implications for the broader dispute
The purpose of this section is briefly to introduce the principal claims in the Ukraine/Russia dispute. The claims before each tribunal are set out in turn, together with a brief consideration of their implications for the broader inter-State dispute.
A. International Court of Justice
In January 2017, Ukraine instituted proceedings before the ICJ against Russia. The claims concern alleged violations of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) in eastern Ukraine and of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) in Crimea.Footnote 13
It is, of course, the compromissory clauses in the ICSFT and CERD that explains Ukraine's invocation of these treaties.Footnote 14 In its application, Ukraine points in passing to a range of other alleged violations by Russia, including violations of the principle of non-intervention, the prohibitions on the use of force and conquest, and the right to life of Ukrainian nationals.Footnote 15 However, in the absence of optional clause declarations from either State, compromissory clauses in relevant treaties, such as the UN Charter or the International Covenant on Civil and Political Rights,Footnote 16 or a special agreement between the parties, there exists no explicit basis for the Court to exercise jurisdiction over claims relating to these other aspects of the broader dispute. The ICSFT and CERD offer the only door through which the Court might examine certain aspects of Ukraine's allegations.
This brings us to the question of the possible ways in which that broader dispute might nonetheless be implicated in the Court's assessment of the specific legal claims before it. Regarding the CERD claims, none of those claims clearly implicates the occupation and annexation of Crimea, as the majority of the provisions in CERD are not territorially limited. Nonetheless, at various points in its memorial, Ukraine does allude to Russia's annexation of Crimea in the context of its CERD claims. For example, Ukraine submits that interpreting certain provisions of CERD requires a renvoi to Article 49 of the Fourth Geneva Convention, which only applies in occupied territory.Footnote 17 Furthermore, Ukraine argues that Russia cannot invoke those clauses in CERD providing for certain non-precluded measures as that would be tantamount to allowing Russia to invoke its own unlawful conduct (its annexation of Crimea) to justify its actions.Footnote 18 How the Court will engage with these submissions remains to be seen.
Regarding the ICSFT, the position may be more complicated. Throughout the proceedings thus far, Ukraine alleges as part of its ICSFT claims, inter alia, that Russia directly finances separatist groups in eastern Ukraine that carry out terrorist attacks.Footnote 19 Russia has responded that the focus of the ICSFT is on States parties cooperating to suppress the financing of such actions by private actors, as opposed to the financing of such acts by States themselves.Footnote 20 Part of Ukraine's reasoning here relies on an analogy to the Court's approach to a similar question in Bosnia v Serbia,Footnote 21 which, if accepted, might enable the Court to consider claims of direct Russian support for separatists as part of the ICSFT claims.Footnote 22 Should the Court take up this invitation, the scope for the ICJ to draw on the broader dispute between Ukraine and Russia would be enlarged.
B. Annex VII UNCLOS Tribunal
Under the auspices of the Permanent Court of Arbitration (PCA), Ukraine instituted inter-State arbitral proceedings in September 2016 against Russia under Annex VII of UNCLOS, alleging various violations by Russia of Ukraine's rights under the Convention.Footnote 23 In addition, Ukraine has instituted further Annex VII proceedings in relation to Russia's seizure and detention of Ukrainian warships and their crews in the Kerch Strait in November 2018; pending constitution of that Tribunal, Ukraine requested the indication of provisional measures by the International Tribunal for the Law of the Sea (ITLOS).Footnote 24
It is particularly with respect to the 2016 UNCLOS claims that the broader territorial dispute concerning Crimea may be implicated, and even more so than in the ICJ proceedings.Footnote 25 This is because they involve claims that Russia has violated Ukraine's rights as the coastal State under UNCLOS in the Black Sea, Sea of Azov and Kerch Strait.Footnote 26 Given the law of the sea principle that sovereignty over maritime areas is determined by sovereignty over adjacent land (the so-called ‘land dominates the sea’ principle), this requires a determination of which State is the territorial sovereign in Crimea.Footnote 27 Indeed, in contrast to its pleadings thus far in the UNCLOS dispute relating to the November 2018 Kerch Strait incident,Footnote 28 Ukraine does not dispute that its 2016 claims are premised on its sovereignty over Crimea.Footnote 29 These particular UNCLOS claims thus seem to implicate the sovereignty dispute over Crimea.
C. European Court of Human Rights
The claims before the ECtHR comprise both inter-State and mixed claims. At the time of writing, there are five pending inter-State applications to the ECtHR brought by Ukraine against Russia relating to the dispute under consideration here.Footnote 30 These include two consolidated cases, pending before the Grand Chamber at the time of writing, one of which relates to claims concerning Crimea and the other to claims concerning eastern Ukraine.Footnote 31 In these cases, Ukraine alleges Russian responsibility for violations of a range of rights protected under the European Convention on Human Rights (ECHR) in Crimea and eastern Ukraine,Footnote 32 arguing that Russia exercises jurisdiction by virtue of its effective control over Crimea and its control of separatists and armed groups in eastern Ukraine.Footnote 33 The third case concerns the alleged abduction of three groups of children in eastern Ukraine by separatist forces and their temporary transfer to Russia.Footnote 34 The fourth is an August 2018 application lodged by Ukraine that concerns the detention and prosecution of Ukrainian nationals by Russia.Footnote 35 The fifth case relates to the November 2018 incident in the Kerch Strait.Footnote 36
In addition to the inter-State applications, at the time of writing there are also approximately 4,300 individual applications before the ECtHR, against both Russia and Ukraine, that all appear related to the events in Crimea or eastern Ukraine.Footnote 37 Amongst the pending cases are claims against Ukraine by relatives of the victims of the MH17 disaster who allege that Ukraine failed to protect those victims’ lives by not closing its airspace over the armed conflict in the region (thus violating its positive obligations).Footnote 38 Russia's responsibility for the destruction of MH17 is similarly invoked in some of these individual applications, both in the form of directly attributing the attack to Russia and as an alleged violation of Russia's positive obligations.Footnote 39
In certain respects, these ECHR claims are likely to implicate the broader inter-State dispute. It is clear that Russia's alleged intervention in eastern Ukraine will directly be raised in these cases, as the Court will need to consider whether Russia exercises Article 1 ECHR jurisdiction in the region, including, potentially, through the separatists operating there.Footnote 40 Indeed, in its previous case law, the Court has held States responsible for the actions of separatists on another State's territory on the basis of the foreign State's control, though it has not been made clear whether that is a result of its control over territory (thus engaging the positive obligations of the State in areas within its jurisdiction) or control over the separatists themselves whose actions are then attributable to the State.Footnote 41 In either case, however, assessing the ECHR claims would likely require a consideration of the degree of Russian intervention in eastern Ukraine and its support of separatists.
The relationship between the ECHR claims and the sovereignty dispute over Crimea is more complicated. On the one hand, the Court's extensive jurisprudence on extraterritoriality demonstrates its willingness to extend the Convention to territory over which States parties exercise effective control.Footnote 42 This would suggest that there is no need to consider the sovereignty question in order to determine the applicability of the Convention to Russia's actions in Crimea. Nevertheless, questions of sovereignty have arisen in previous ECHR cases for the purposes of finding a (limited) residual jurisdiction of the sovereign State in parallel with (full) jurisdiction of the foreign State exercising effective control.Footnote 43 Furthermore, the Court might also be drawn into the sovereignty question at the merits stage if it is called on to make a renvoi to IHL to interpret the Convention rights in the Crimea context.Footnote 44 Thus, it may be faced with the question of the applicability of the law of occupation to Crimea, with the consequence that it would need to determine whether Russia is an occupying power or the sovereign in the peninsula.Footnote 45
D. WTO DisputesFootnote 46
At the time of writing, two cases are pending before the WTO dispute settlement system between Russia and Ukraine,Footnote 47 with panel reports having recently been issued in three further cases.Footnote 48 Unlike the proceedings noted above, these do not concern claims arising directly from the dispute over Crimea or eastern Ukraine. Instead, they all concern the compatibility with WTO law of various trade-related measures introduced by each State. In this sense, one could view them as entirely separate from the broader inter-State dispute that is the focus of this article.
However, the WTO cases are included here given the potential for aspects of the broader dispute between Ukraine and Russia to arise in these proceedings. For example, in the recently adopted panel report in Russia–Traffic in Transit, Ukraine challenged a number of Russian restrictions on Ukrainian traffic in transit through Russia to third States. In defence, Russia successfully invoked Article XXI(b)(iii) of the General Agreement on Tariffs and Trade (GATT) to justify its measures,Footnote 49 and the panel was thus the first WTO panel called on to address the long-standing debate over the justiciability of that provision.Footnote 50 Russia's invocation of Article XXI(b)(iii), in permitting action considered necessary by the State for its essential security interests ‘taken in time of war or other emergency in international relations’, could have implicated aspects of the broader dispute between Ukraine and Russia. This would be the case, for example, had Ukraine claimed that Russia's reliance on Article XXI(b)(iii) represented an abuse of right on the basis of the latter's alleged intervention in eastern Ukraine and its occupation of Crimea. Simply put, Russia's reliance on a situation to which it allegedly has contributed so as to justify deviation from its obligations could, on this argument, be viewed as a bad faith invocation by Russia of Article XXI(b)(iii).Footnote 51 Though Ukraine has raised a similar argument in the ICJ proceedings with respect to certain non-precluded measures under CERD,Footnote 52 as well as in the UNCLOS proceedings in response to Russia's preliminary objections,Footnote 53 there is no indication that it made such an argument before the WTO panel.Footnote 54 The Dispute Settlement Body subsequently adopted the panel report, but whether similar arguments might arise in other cases remains to be seen.
E. Investment Arbitrations
A number of individual claimsFootnote 55 have also been brought by Ukrainian investors against Russia under the 1998 bilateral investment treaty (BIT) between the two States.Footnote 56 These cases involve claims by Ukrainian investors of violations of the BIT by Russia in Crimea.Footnote 57 Russia has refused to engage with these claims on the basis that it does not recognise the jurisdiction of the tribunals.Footnote 58
As mixed claims by individual investors against Russia, as opposed to claims by Ukraine, these are, of course, quite distinct from the inter-State claims discussed above and the broader inter-State dispute. Indeed, the dual-track nature of mixed and inter-State claims under BITs (including under the 1998 Russia–Ukraine BIT) ensures that private investors’ claims in these mixed cases are legally distinct from any inter-State claims.Footnote 59 However, it is clear that these investor–State arbitrations do implicate the inter-State dispute. First, Ukraine's interest in these cases is confirmed by its successful applications to make written submissions as a non-disputing party.Footnote 60 Second, though the majority of the BIT claims are brought by wholly private Ukrainian investors, two of the known cases involve (Ukrainian) State-owned claimants.Footnote 61 This indicates a closer link between at least some of these BIT claims and the broader inter-State dispute than the formal bifurcation of investor–State and inter-State proceedings under the BIT suggests.
Third, and most importantly for our purposes, these claims call for an application of Russia's obligations under the 1998 BIT to Crimea. The BIT covers investments by one of the State's nationals in the ‘territory’ of the other State.Footnote 62 The success of these claims thus appears conditioned on the tribunals’ recognition that Crimea now forms part of Russia's ‘territory’ for the purposes of the BIT (and that those that were previously domestic Ukrainian investors became foreign investors protected by the BIT following Russia's intervention in Crimea). Like the Annex VII tribunal addressing Ukraine's UNCLOS claims, and potentially the ECtHR regarding the ECHR claims, it would appear that these investment tribunals would need to make determinations regarding the territorial status of Crimea in order to rule on the merits of the claims. As explained below, however, in some recent decisions the tribunals have sought to avoid any such suggestion of a relationship between the BIT claims and the broader sovereignty dispute.
F. International Criminal ProceedingsFootnote 63
A number of efforts have been made to hold individuals accountable for violations of international law committed in the course of the hostilities in Ukraine. Particularly prominent have been attempts to hold to account those responsible for the destruction of Malaysia Airlines Flight MH17. For example, an attempt to create an International Criminal Tribunal for Malaysia Airlines Flight MH17 through a draft Security Council resolution was vetoed by Russia in July 2015.Footnote 64 Others have suggested alternative venues for invoking individual responsibility, particularly with respect to MH17, such as an adversarial model of a commission of inquiry, an international criminal tribunal established by the General Assembly, national criminal proceedingsFootnote 65 or a Lockerbie-style court.Footnote 66
Against this background, the Office of the Prosecutor (OTP) of the ICC is examining allegations of international crimes committed in Ukraine. Though Ukraine is not a party to the Rome Statute,Footnote 67 following the Euromaidan protests the new government lodged two declarations under Article 12(3) of the Rome Statute. The first, deposited on 17 April 2014, focused on crimes committed during the Euromaidan protests between 21 November 2013 and 22 February 2014.Footnote 68 The second, dated 8 September 2015, extended this by granting the ICC jurisdiction ‘for the purpose of identifying, prosecuting and judging the perpetrators and accomplices of acts committed in the territory of Ukraine since 20 February 2014’.Footnote 69 This second declaration thus potentially brings events in eastern Ukraine and Crimea within the jurisdiction of the Court. The situation in Ukraine is currently under preliminary examination by the OTP to determine whether the cumulative requirements of jurisdiction, admissibility and the interests of justice are met in order to open an investigation.Footnote 70 With respect to Crimea and eastern Ukraine, the Prosecutor has collected information on crimes within the Court's jurisdiction allegedly committed in those regions.Footnote 71
Notwithstanding the nature of these proceedings as ones concerning individual criminal responsibility, there is a clear relationship between them and the broader inter-State dispute. First, and most fundamentally, there is a need to consider whether Crimea is a part of Ukraine's ‘territory’, at least for the purposes of the Rome Statute, as the Court's jurisdiction over events there is conditional on such a finding.Footnote 72
Second, the relationship between the specific investigations before the ICC and the broader inter-State dispute also arises with respect to the applicable law. In particular, there is a need to consider the character of any armed conflict that may exist in Crimea or eastern Ukraine, in order to clarify which war crimes provisions of the Rome Statute are applicable.Footnote 73 This may require consideration of the territorial dispute over Crimea (including whether Crimea is Ukrainian territory that is occupied by Russia) and the degree of Russian control over separatists in eastern Ukraine. With respect to Crimea, in its 2016 report on preliminary examinations, the OTP stated:
The information available suggests that the situation within the territory of Crimea amounts to an international armed conflict between Ukraine and the Russian Federation. This international armed conflict began at the latest on 26 February when the Russian Federation deployed members of its armed forces to gain control over parts of Ukrainian territory without the consent of the Ukrainian Government. The law of international armed conflict would continue to apply after 18 March 2014 to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an ongoing state of occupation.Footnote 74
With respect to eastern Ukraine, in its 2016 report on preliminary examinations, the OTP held that, based on the information available, the conditions for the existence of a non-international armed conflict had been met.Footnote 75 In addition, it held that there was some evidence that an international armed conflict between Russia and Ukraine existed in the region as a result of direct military engagements between the two States.Footnote 76 Importantly, the OTP also noted:
For the purpose of determining whether the otherwise non-international armed conflict could be actually international in character, the Office is also examining allegations that the Russian Federation has exercised overall control over armed groups in eastern Ukraine … In conducting its analysis, the Office must assess whether the information available indicates that Russian authorities have provided support to the armed groups in the form of equipment, financing and personnel, and also whether they have generally directed or helped in planning actions of the armed groups in a manner that indicates they exercised genuine control over them.Footnote 77
Interestingly, though it recognises the relevance of the status of Crimea for the purposes of the applicable law, the OTP does not appear to have considered the preliminary question of the status of Crimea for the purposes of determining whether it is part of Ukraine's ‘territory’ and thus within Ukraine's Article 12(3) conferral of jurisdiction. This is notwithstanding its recognition that ICC jurisdiction is limited to crimes committed within the territory of Ukraine.Footnote 78 As explained above, should a case concerning Crimea reach the Court, the (pre-)Trial Chamber would likely need to consider the status of Crimea both as a preliminary jurisdictional matter and as a consideration at the merits stage when determining the applicable law.
III. Three approaches to disaggregation
It is clear from the preceding section that many of the specific legal claims arising out of the Ukraine/Russia dispute over Crimea and eastern Ukraine potentially implicate that broader dispute. This raises the question as to what impact any such relationship between these claims and the broader inter-State dispute might have on the jurisdiction of the tribunals. Put differently, what are the consequences of the disaggregation of disputes for the ability of international tribunals to rule on particular legal claims?
The approach that each of the tribunals above takes to this issue varies (not only across tribunals, but also across case law of individual tribunals). Three broad approaches are, however, discernible: first, the severability approach, whereby the tribunal explicitly isolates the particular claim, over which it has jurisdiction, from the broader dispute, over which it does not; second, the restrictive approach, whereby the tribunal considers the specific claim to be inseparable from the broader dispute, thereby depriving it of jurisdiction over the specific claim; third, the expansive approach, whereby the tribunal appears willingly to pronounce on matters over which it would not separately have jurisdiction where it is necessary to do so in addressing the claims over which it does have jurisdiction.
Each approach is discussed in turn. The ongoing nature of the Ukraine/Russia litigation means that many of these tribunals are yet to make any pronouncements in the context of this dispute. The analysis that follows, however, considers the approach that has been adopted to such issues across the jurisprudence of different tribunals. The three approaches thus represent a general framework of relevance beyond the particular Ukraine/Russia cases.
A. The Severability Approach
The severability approach broadly describes those cases in which a tribunal recognises that its jurisdiction is limited to addressing the specific claims before it and not other aspects of the broader dispute to which those claims relate, but that jurisdiction over those specific claims can still be exercised as those claims are separable from the broader dispute. Amongst the tribunals seised of the Ukraine/Russia claims, the ICJ, the WTO dispute settlement system, and investment arbitrations have all followed this approach in particular cases.
Regarding the ICJ, notwithstanding references to other allegations against Russia in Ukraine's application,Footnote 79 the Court, in its order on provisional measures,Footnote 80 emphasised the restricted form in which the core legal claims were brought and its limited jurisdiction in the case:
The context in which the present case comes before the Court is well known. In large parts of eastern Ukraine, that context is characterized by periods of extensive fighting which, as the record before the Court demonstrates, has claimed a large number of lives. The destruction, on 17 July 2014, of Malaysia Airlines Flight MH17 while it was flying over Ukrainian territory en route between Amsterdam and Kuala Lumpur, caused the deaths of 298 people. The Court is well aware of the extent of this human tragedy. Nevertheless, the case before the Court is limited in scope. In respect of the events in the eastern part of its territory, Ukraine has brought proceedings only under the ICSFT. With regard to the events in Crimea, Ukraine's claim is based solely upon CERD and the Court is not called upon, as Ukraine expressly recognized, to rule upon any issue other than allegations of racial discrimination.Footnote 81
Consistent with its previous case law,Footnote 82 the Court thus makes clear that its jurisdiction is both granted and limited by the two treaties under which the claims have been brought.Footnote 83 The ICJ has been clear, however, that it may nonetheless look beyond the specific norms over which it has jurisdiction if necessary for their interpretation.Footnote 84 As Lorand Bartels has noted, jurisdiction clauses (such as compromissory clauses) limit the principal norms, yet leave intact certain categories of incidental norms,Footnote 85 the latter including norms used to interpret the former.Footnote 86 There is, of course, a balance to be struck here. As the quote above from Sir Christopher Greenwood indicates,Footnote 87 this balance is between ensuring that the Court can deal effectively with disputes (which could be undermined by omitting highly relevant extraneous rules), whilst simultaneously honouring the principle that States must consent to the jurisdiction of international tribunals. The controversy over the ICJ's approach to these issues in the Oil Platforms case indicates the difficulty with where to strike such a balance, and indeed many of the criticisms of the Oil Platforms judgment suggested that the Court displaced rather than interpreted the applicable law.Footnote 88
Notwithstanding the quote above from the Court's provisional measures order in Ukraine v Russia, suggesting its strict adherence to its limited jurisdiction, Russia nevertheless objects to the Court exercising jurisdiction in that case. Thus, in its preliminary objections, Russia argues:
The invocation of the ICSFT and CERD is … artificial. Ukraine has made plain its wish to bring its misplaced allegations of annexation and aggression before the Court or other tribunals, and the current claims merely constitute one of Ukraine's attempts inappropriately to shoehorn those allegations into one or more treaties that provide for compulsory dispute settlement.Footnote 89
More specifically, Russia argues that Ukraine's invocation of the ICSFT as a basis for challenging alleged direct Russian support for terrorism ‘constitutes an invitation to circumvent Russia's obvious lack of consent’ to ICJ jurisdiction.Footnote 90 With respect to Ukraine's CERD claims, Russia submits that ‘[t]he real issue in the dispute between the parties does not concern racial discrimination but the status of Crimea’Footnote 91 and that ‘[s]uch an issue does not fall within the Court's jurisdiction ratione materiae under CERD’.Footnote 92
These objections are reminiscent of the same respondent's preliminary objection to Georgia's claims under the CERD in Georgia v Russia,Footnote 93 where it argued that the true dispute between the two States was one concerning armed conflict, rather than racial discrimination; it thus invited the Court to characterise the dispute in this way, as opposed to one concerning the interpretation or application of the CERD, which would have resulted in a finding of no jurisdiction.Footnote 94 Russia's objections in both Georgia v Russia and Ukraine v Russia are premised on the idea that the disaggregation or framing of the dispute has resulted in claims that misrepresent its true nature, and that the real dispute is one over which the Court lacks jurisdiction. This is not an uncommon objection to be raised by respondents in ICJ cases.Footnote 95 In its order on provisional measures in Ukraine v Russia, the Court did not share this view (which Russia had invoked at that stage in respect of the ICSFT specificallyFootnote 96), instead simply asserting that the factual allegations raised by Ukraine do appear prima facie to engage certain provisions of the ICSFT.Footnote 97 Its view as to the severability of the claims under the CERD and ICSFT from the broader dispute between Ukraine and Russia thus enabled it to look at these claims in isolation. In much of its previous case law, the ICJ has taken a similar approach to this type of jurisdictional objection.Footnote 98
The severability approach has also been taken by the WTO Appellate Body in certain previous cases. Thus, in Mexico–Soft Drinks, the Appellate Body was faced with a claim from Mexico that Mexico's WTO obligations towards the US were inapplicable as a result of the latter's illegal refusal to establish a NAFTA panel to resolve what was claimed to be the broader bilateral dispute with which the US’ claims were allegedly inextricably linked. The Appellate Body held that examining such an argument
… would entail a determination whether the United States has acted consistently or inconsistently with its NAFTA obligations. We see no basis in the DSU [Dispute Settlement Understanding] for panels and the Appellate Body to adjudicate non-WTO disputes … Accepting Mexico's interpretation would imply that the WTO dispute settlement system could be used to determine rights and obligations outside the covered agreements.Footnote 99
It has been suggested that, ‘[w]hile this statement probably went too far, confusing interpretation with adjudication … the point for present purposes is that it clearly illustrates a deep reluctance on the part of the Appellate Body to be drawn into expressing an opinion on the content and meaning of international legal texts other than the covered agreements’.Footnote 100 Having refused to engage with Mexico's argument, the Appellate Body simply went on to assess the conformity of Mexico's measures against the WTO covered agreements alone. It thus appeared to sever the WTO claims from the NAFTA dispute, leaving it free to rule on the former.
As noted above, it does not appear that Ukraine raised any arguments in the Russia–Traffic in Transit proceedings that would have implicated the broader dispute (and non-WTO norms, such as the prohibitions on intervention and the use of force).Footnote 101 However, should such arguments be raised in other WTO proceedings, it is not clear precisely what approach the Appellate Body would take. It may be that, as with its other jurisprudence, the Appellate Body would be willing to take account of non-WTO norms in order to interpret Article XXI GATT.Footnote 102 Alternatively, it may follow its approach from Mexico–Soft Drinks and apply the WTO covered agreements whilst refusing to engage with non-WTO arguments. Indeed, the panel in Russia–Traffic in Transit was keen to emphasise the inconsequential nature of its conclusions for the broader inter-State dispute.Footnote 103
Finally, the severability approach can most clearly be seen in the awards already issued by some of the Crimea investment tribunals. It has been reported that a number of the tribunals in these cases have found jurisdiction whilst claiming not to have ruled on the question of sovereignty over Crimea.Footnote 104 Indeed, at the time of writing, seven tribunals have reportedly decided on the merits and found in favour of the claimants.Footnote 105
It appears that in the jurisdictional decisions, at least some of the tribunals determined that ‘territory’ under the BIT could be defined solely for the purpose of the BIT as including territory over which one of the parties to the BIT exercises effective control,Footnote 106 whether lawful or unlawful.Footnote 107 Reports concerning the PJSC Ukrnafta v The Russian Federation and Stabil LLC et al. v The Russian Federation jurisdictional decisions give some detail on the reasoning of the tribunals, noting that they held that Russia exercised effective control over Crimea through physical and legal acts, which, for the purposes of the BIT, was sufficient to constitute Russian ‘territory’.Footnote 108 The tribunals made clear, however, that they did not have jurisdiction under Article 9 of the 1998 BIT to rule on the sovereignty question.Footnote 109 Moreover, it appears that in its interventions, Ukraine argued that, though Crimea is a part of sovereign Ukrainian territory, Russia's de facto control of the peninsula renders it Russian ‘territory’ for the purposes of the BIT.Footnote 110 Indeed, an attempt by Russia to have these partial awards set aside in the Swiss Federal Tribunal was rejected, with the Tribunal holding that the arbitral tribunals did not err in finding that the BIT applied to Crimea.Footnote 111
These investment tribunals have thus accepted jurisdiction in cases implicating ancillary (territorial) disputes, but on the basis that they view the BIT as self-contained, with ‘territory’ capable of interpretation for the purposes of the BIT alone and without further consequence.Footnote 112 In this sense, these cases, as with those of the ICJ and WTO that were discussed above, fully embrace disaggregation, with the specific legal claims considered wholly separable from other aspects of the broader dispute.
B. The Restrictive Approach
The restrictive approach covers those cases in which a tribunal considers the specific claims over which it appears to have jurisdiction to be inseparable from other aspects of a dispute over which it does not have jurisdiction, resulting in the tribunal declining to exercise jurisdiction even over the former. In contrast to the severability approach, therefore, the restrictive approach does not accept that each aspect of the broader dispute can be disaggregated so as to leave intact jurisdiction over specific elements of that dispute. This restrictive approach can be seen in some case law of both the ICJ and UNCLOS tribunals.
The ICJ's clear support for the severability approach in both its provisional measures order in Ukraine v Russia and in earlier cases was set out above.Footnote 113 However, there is also previous authority that the Court will reject jurisdiction in certain cases where either the ‘very essence of the dispute’ is something other than that over which the Court has jurisdiction (with the latter being only a secondary question),Footnote 114 or, more basically, where addressing the question put to it requires a predetermination of a different matter over which the Court has not been granted jurisdiction.Footnote 115 As Peter Tzeng has noted,Footnote 116 these tests bear a clear similarity to the tests adopted by the Court in its case law addressing the indispensable third party principle.Footnote 117
Russia's jurisdictional objection before the ICJ, which, as noted, challenges the framing or characterisation of its dispute with Ukraine as one concerning the ICSFT and CERD,Footnote 118 is not entirely analogous to these previous ICJ cases. The Interim Accord and Malaysia/Singapore cases are concerned with the slightly different situation where the Court is called upon to make a prior determination about a different dispute over which it has not been granted jurisdiction so that it might then rule on the matter over which it has been granted jurisdiction. The Court's reasoning in the Aegean Sea case is closer in nature to Russia's objection, as it raises the question about how to characterise a dispute (‘the very essence of the dispute’). Its focus, however, again appears to be on cases where the actual claim over which the Court has jurisdiction is something that can only be decided after resolving the ‘true’ dispute over which the Court does not have jurisdiction. In any event, though it was shown above that the existence of a broader dispute does not itself preclude the ICJ from dealing with the specific claim over which it has jurisdiction,Footnote 119 it is clear that there are limits to the ICJ's willingness to deal with one specific claim that arises from a broader dispute.
As with the claims before the ICJ, Russia similarly objects that Ukraine's 2016 UNCLOS claims before the Annex VII tribunal mischaracterise the ‘real dispute’, which, Russia argues, is ‘the dispute with respect to sovereignty over land territory’, and that ‘the determination of that dispute is the unavoidable prerequisite to addressing the specific [UNCLOS] claims’.Footnote 120 Such disputes are, Russia claims, outside the jurisdiction of UNCLOS tribunals as they do not concern the ‘interpretation or application’ of the Convention.Footnote 121 UNCLOS tribunals have faced similar jurisdictional objections (that maritime claims implicate territorial sovereignty disputes) in certain previous cases,Footnote 122 where one can see the restrictive approach again being endorsed.Footnote 123
The Mauritius v United Kingdom and Philippines v China awards concerned UNCLOS claims of this nature, and whilst both endorse a restrictive approach to jurisdiction, they differ in their reasoning and in their conclusions on the facts.Footnote 124 In the former case, Mauritius brought a claim against the UK for the latter's creation of a marine protected area (MPA) around the Chagos archipelago, alleging, in its first submission, that the UK is not permitted to declare an MPA as it is not the ‘coastal state’.Footnote 125 In precisely the same way as in the Ukraine v Russia case before the Annex VII tribunal, the question of territorial sovereignty thus appeared to be implicated. The UK, similar to Russia's response to Ukraine's applications to the ICJ and the Annex VII tribunal, objected that Mauritius’ first submission reflected ‘an artificial re-characterization of the long-standing sovereignty dispute as a “who is the coastal State” dispute’.Footnote 126 Mauritius, on the other hand, argued that it was merely requesting the Tribunal to interpret a term within UNCLOS, that of ‘coastal state’.Footnote 127
The Tribunal held that it needed to determine the proper characterization of the dispute in order to determine whether it had jurisdiction (ie whether the dispute was concerned primarily with the interpretation and application of UNCLOS or with sovereignty).Footnote 128 On the basis of the historical record of the dispute and the consequences of determining that the UK was not the coastal State (considered to extend beyond the validity of the MPA), the Tribunal concluded that ‘the Parties’ dispute with respect to Mauritius’ First Submission is properly characterized as relating to land sovereignty over the Chagos Archipelago’.Footnote 129 It then held that, where the ‘real issue in the case’ and the ‘object of the claim’ do not relate to the Convention, an ‘incidental connection’ to the Convention cannot bring the dispute within the tribunal's jurisdiction.Footnote 130 Applying this test, the Tribunal concluded that, though ‘in some instances a minor issue of territorial sovereignty could indeed be ancillary to a dispute concerning the interpretation or application of the Convention’, and thus within an UNCLOS tribunal's jurisdiction, that was not the case here; it therefore considered itself to be without jurisdiction over Mauritius’ first submission.Footnote 131
Whereas the Tribunal in Mauritius v UK thus focused entirely on the character of the dispute (‘the real issue in the case’), a slightly different approach was taken by the tribunal in Philippines v China. In this case, China, like the UK in Mauritius v UK and Russia in both the ICJ and UNCLOS Ukraine v Russia cases, raised concerns with the disaggregation of the broader inter-State dispute and objected that the true dispute was not that over which the tribunal had jurisdiction.Footnote 132 The Tribunal stated that ‘[t]he nature of the dispute may have significant jurisdictional implications, including whether the dispute can fairly be said to concern the interpretation or application of the Convention’ and that it is for the Tribunal to determine the characterisation of the dispute based on the submissions of the parties and other relevant evidence.Footnote 133 Importantly, the Tribunal began by emphasising that the existence of a sovereignty dispute between the parties did not mean that the claims before it were properly to be characterised as relating to sovereignty: ‘the Parties can readily be in dispute regarding multiple aspects of the prevailing factual circumstances or the legal consequences that follow from them.’Footnote 134 It then held that it
… might consider that the Philippines’ Submissions could be understood to relate to sovereignty if it were convinced that either (a) the resolution of the Philippines’ claims would require the Tribunal to first render a decision on sovereignty, either expressly or implicitly; or (b) the actual objective of the Philippines’ claims was to advance its position in the Parties’ dispute over sovereignty.Footnote 135
Thus, whereas the Mauritius v UK Tribunal relied solely on the characterisation of the dispute, the Tribunal in Philippines v China also considered a dispute to be outside its jurisdiction where the sovereignty question (though not the actual objective of the claims) must still be answered in order to rule on the UNCLOS claim. On the facts, it held neither of these to be the case as the Philippines had not asked the Tribunal to rule on sovereignty, nor was such a ruling implicitly required to address the Philippines’ submissions.Footnote 136
The factual similarity between Mauritius v UK and Ukraine v Russia might lead the Tribunal in the latter to follow the purely characterisation-based approach of the former, and it may well come to the same conclusion. Ukraine, however, argues that its claims are based on UNCLOS and that Russia's objection that the real dispute is a sovereignty dispute is inadmissible and implausible given the international community's rejection of its annexation of Crimea in the General Assembly; this is in contrast to the long-running sovereignty dispute that was the context for the Mauritius v UK case.Footnote 137 Should the Tribunal follow this argument, it might view the facts as closer to those cases recognised in Mauritius v UK in which a minor incidental sovereignty question may be resolved where the key issue concerns UNCLOS rights.Footnote 138
Alternatively, should the Tribunal follow the approach in Philippines v China, this could either support or undermine Ukraine's claims. On the one hand, Philippines v China explicitly recognised the co-existence of maritime and sovereignty claims and the possibility of separating the two.Footnote 139 On the other hand, in addition to the characterisation approach, the Tribunal also held that an UNCLOS tribunal would lack jurisdiction if any decision on sovereignty is a necessary precursor to addressing the UNCLOS claim,Footnote 140 which, as stated above, is likely to be the case here. This appears a stricter test than that in Mauritius v UK.
To conclude, there are some interesting parallels between the approaches of the UNCLOS tribunals and the ICJ in cases endorsing this restrictive approach. Whilst both Philippines v China and the ICJ explicitly recognise that the disaggregation of disputes need not raise jurisdictional problems where they are entirely separable, discrete legal claims,Footnote 141 it is also clear that the UNCLOS cases reflect a similar (though perhaps greaterFootnote 142) concern to some of the ICJ jurisprudence cited above where the claims are considered inseparable from the broader dispute. In both fora, this concern has focused on the characterisation of the dispute—the ‘very essence of the dispute’Footnote 143 or the ‘real issue in the case’Footnote 144—as well as the question of whether a prior determination is needed of an incidental matter that itself is outside the jurisdiction of the tribunal.Footnote 145 Such approaches suggest that the disaggregation of broader disputes into discrete legal claims can have a limiting effect on the jurisdiction of international tribunals.
C. The Expansive Approach
The final approach to these issues that can be seen in particular cases is referred to here as the expansive approach. This refers to those cases in which a particular tribunal, faced with a claim that implicates other aspects of a broader dispute over which it would not otherwise have jurisdiction, nevertheless exercises jurisdiction over the specific claim and, importantly, does not shy away from making other determinations regarding that broader dispute.
The expansive approach can especially be seen in the case law of the ECtHR. It was noted above that the pending ECHR claims (both inter-State and individual) will likely implicate the broader inter-State dispute concerning alleged Russian interference in eastern Ukraine and (potentially) the sovereignty dispute over Crimea. This notwithstanding, the ECtHR's previous case law that was noted aboveFootnote 146 indicates that it is unlikely to view this as a challenge to its jurisdiction over the ECHR claims themselves; this is in contrast to the restrictive approach, which, as noted, sees such incidental matters as undermining the tribunals’ jurisdiction even over the specific claims. Moreover, the Strasbourg Court's case law suggests that it will also not shy away from making determinations over those incidental matters, in contrast to the severability approach, which, as noted, emphasises the separability of the specific claims and the tribunals’ determinations thereunder from the broader dispute. Thus, its northern Cyprus and Transdniestria cases confirm a willingness on the part of the ECtHR to address incidental questions of territorial sovereignty in order to rule on the specific claims within its jurisdiction.Footnote 147 Similarly, the Court in these cases willingly ruled on the extent of foreign State intervention (including, in Transdniestria, control of separatists) in order to determine whether jurisdiction existed under the Convention.Footnote 148
This expansive approach to jurisdiction can also be seen in the approach of the ICC's OTP in relation to its preliminary examination into the situation in Ukraine, as well as in some previous jurisprudence of international criminal tribunals. The possibility of the inter-State Ukraine/Russia dispute being implicated in the ICC proceedings, with respect both to jurisdiction and applicable law, was noted above.Footnote 149 It is clear from its reports on preliminary activities that the OTP considers incidental determinations about the status of Crimea (ie whether or not it is occupied and thus not sovereign Russian territory) and the extent of Russian control over insurgent groups in eastern Ukraine to fall within the jurisdiction of the ICC.Footnote 150
It remains to be seen what approach the ICC might take to such issues, ie whether it will follow the expansive approach suggested by the OTP, the severability approach followed in much ICJ case law and the Crimea BIT arbitrations, or the restrictive approach of the UNCLOS tribunals and certain ICJ cases. It could be instructive to look at previous case law of the International Criminal Tribunal for the former Yugoslavia (ICTY) concerning the required level of control over non-State groups by a foreign State for an apparently non-international armed conflict to be considered international in character. This jurisprudence certainly suggests a willingness by (some) international criminal tribunals to make determinations that those tribunals consider as having implications beyond the particular case at hand. Thus, the ICTY famously took the view that the test for the level of foreign State control of armed groups required for a conflict to be considered international was equivalent to the test for State responsibility for the conduct of individuals under their control, such that any determination as to the former was seen as necessarily making a determination regarding the latter.Footnote 151 Though the ICC has applied the same ‘overall control’ test as the ICTY in such situations, it has not taken a position on whether this is considered to be relevant only for the purposes of determining the applicable law before the ICC, or whether it is also viewed as implicating the controlling State's responsibility under international law.Footnote 152
Interestingly, (pre-) Trial Chambers are likely to face similar issues regarding the scope of their jurisdiction in other contexts, such as any future case relating to Palestine where questions of statehood might be raised as a preliminary objection,Footnote 153 or cases concerning the crime of aggression, which necessarily would implicate State responsibility.Footnote 154
IV. Understanding the Different Approaches to disaggregation
The three approaches discussed above (severability, restrictive and expansive) reflect very different ways of engaging with the phenomenon of disaggregation of disputes in international law and its impact on jurisdiction. In particular, they reflect different approaches to where the balance referred to by Sir Christopher Greenwood lies—the severability and restrictive approaches might be viewed as the most faithful to the principle of consent, whereas the expansive approach might be seen as more appropriate from the perspective of the effective resolution of disputes.
A number of explanations can be given for the varied approaches of the tribunals to these issues. First, it is clear that the substantive area of law at issue affects the approaches available to the tribunals. For example, the severability approach adopted by the ICJ in many cases and by the Crimea investment arbitrations was not available to the ICJ in Aegean Sea or the UNCLOS tribunal in Mauritius v UK, given that those latter cases concerned law of the sea claims in which the ‘land dominates the sea’ principle is well established; in such cases, one often cannot sever maritime disputes from sovereignty disputes over adjacent land.Footnote 155 In the case of WTO panels and the Appellate Body, Articles 3.2 and 19.2 of the Dispute Settlement Understanding have been seen as placing a particular restriction on their applicable law, including in Mexico–Soft Drinks, in which the Appellate Body viewed Mexico's invocation of NAFTA as inconsistent with those provisions.Footnote 156
Second, each tribunal has different jurisdictional bases and terms of reference that necessarily affect how such matters are addressed. Indeed, the restrictive approach endorsed in the Aegean Sea and Interim Accord cases may well have been influenced by the fact that in both cases the respondent State objected that the claims fell within a reservation to their acceptance of the relevant compromissory clauses.Footnote 157 In Malaysia/Singapore, the Court's jurisdiction was based on a special agreement between the two States by which they referred the sovereignty dispute to the Court, but not any delimitation of the territorial waters of the two States, the latter of which the Court determined would need to be answered in order to address the former.Footnote 158 The jurisdictional remit of the particular tribunal is also particularly important for regime-specific tribunals, such as those under the WTO or UNCLOS, which have a clearly restricted subject-matter jurisdiction.Footnote 159
These considerations provide some important context for understanding the approaches of the ICJ, UNCLOS tribunals, investment tribunals, and WTO dispute settlement system to these questions in the cases discussed above. However, they do not assist in explaining the different approaches of other tribunals, such as the ECtHR, in particular cases, whose jurisdiction is similarly limited by its constituent instrument.Footnote 160 Some further explanation is therefore needed. One possibility is that the different approaches outlined above might be influenced by the different views of each of these tribunals as to their own roles and to the international judicial function more generally. The apparent reluctance in the cases above of the ICJ, UNCLOS tribunals, and WTO panels and Appellate Body to appear to be making determinations beyond their jurisdiction mirrors Cesare Romano's taxonomy of international courts and tribunals in which he groups these three sets of bodies together, noting that
… because of their state versus state nature, in these courts, diplomacy and sovereignty play important roles. These are the courts where the arbitral heritage and dispute settlement original rationale of international courts and tribunals is the most evident. They are, in a way, old-style courts, carrying in their structure and jurisdiction traits of the early days of the development of the current galaxy of international bodies.Footnote 161
The ICJ, for example, though differing in important respects from its predecessors, does at the same time reflect a certain continuity with the Permanent Court of International Justice (and even the Permanent Court of Arbitration) in its identity as an organ for the settlement of bilateral inter-State disputes, reflected most clearly in the retention of the requirement of consent to jurisdiction.Footnote 162 This consensual basis of jurisdiction might help to explain the Court's ‘restraint and caution’ in certain cases,Footnote 163 including its approach in its provisional measures order in Ukraine v Russia in which it emphasised its limited jurisdiction and the self-contained nature of the claims.Footnote 164 The Court, in this respect, is said to view itself as being ‘in a transactional position in relation to the parties’,Footnote 165 and thus it exercises restraint not to go beyond the remit of its jurisdiction when addressing the specific inter-State dispute before it. Both the severability and restrictive approaches that were shown above to have been followed by the ICJ chime with this restrained view of the Court, as they both reflect (albeit to differing degrees) a limited approach to jurisdiction.
One can also see similar arguments being made with respect to the dispute settlement regimes under UNCLOS and the WTO.Footnote 166 In the case of the WTO dispute settlement system, Joseph Weiler has argued that the diplomatic ethos of early GATT panels continues to influence the approaches of WTO panels and the Appellate Body.Footnote 167 Indeed, Andrew Lang has invoked Weiler's thesis as a possible explanation for the WTO Appellate Body's restrained decision-making in certain areas, which might help to explain its reluctance in Mexico–Soft Drinks to appear to be stepping beyond the covered agreements:
… it does seem possible that the particular judicial style of the Appellate Body, its particular understanding of the judicial function and of the place of dispute settlement in the overall institutional structure, is a lawyerly expression of that diplomatic ethos carried out through judicial techniques. It is very different from the approach to fragmentation that we see in other institutions – think, for example, of the European Court of Justice, the European Court of Human Rights and the German Constitutional Court – in which the imagined role of the judicature is an altogether more “heroic” one, standing firmly on behalf of fundamental norms, defining the basic commitments of a political body or acting as the spokesperson for an imagined coherent legal order.Footnote 168
Tribunals such as the ECtHR (particularly when addressing individual claims) do not fit so neatly into the ‘dispute settlement’ category—they are not in a ‘transactional position in relation to the parties’Footnote 169—but reflect ‘courts’ in a more fundamental sense. They are said to represent the ‘move from party-focused to legality-focused’ tribunals,Footnote 170 and from consensual to compulsory jurisdiction (in contrast to the ICJ, for example).Footnote 171 In looking beyond bilateral inter-State disputes, and instead at (individual) human rights claims or individual criminal responsibility, bodies such as the ECtHR and ICC may place different weight on considerations such as consent when compared with the classic inter-State dispute settlement tribunals.
This, again, might go some way in explaining why the ECtHR, for example, not only does not generally claim that its rulings are without consequence for the broader inter-State disputes into which they sometimes fall, but occasionally explicitly makes legal determinations relevant to those broader disputes when ruling on the petition before it.Footnote 172 Indeed, drawing a comparison to the often more restricted approach of the ICJ to its jurisdiction, Yuval Shany has noted that ‘the legitimizing role of consent may be greater for some courts than for others’ and that the move towards conferring compulsory jurisdiction on certain regime courts suggests that States ‘place in some areas of their relations a lesser premium on consent … [instead preferring] the greater degree of effectiveness in dispute resolution’.Footnote 173 This is linked to the ECtHR's view of its own function, whereby it sees ‘its mission under the ECHR as primarily directed at the promotion of respect for human rights’.Footnote 174
The argument should not, of course, be taken too far, or be seen as endorsing an essentialist account of international tribunals and their approaches to the jurisdictional issues discussed in this article. Tribunals do not follow a monolithic approach here. In suggesting that the ICJ's approach to these issues generally correlates with its historically inter-State dispute settlement function, I do not argue that the Court perceives itself as serving only this bilateral dispute settlement function, nor indeed that such a function can be performed without any broader consequence.Footnote 175 It is also not to say that the principle of consent is always decisive for the ICJ when deciding issues of jurisdiction and admissibility.Footnote 176 Similarly, if, in their reasoning, the Mauritius v UK and Philippines v China tribunals endorsed a restrictive approach to these issues, in other respects UNCLOS tribunals have been more expansive in their approach to jurisdiction.Footnote 177 With respect to the WTO Appellate Body, when viewed from other perspectives, its approach can also be seen as radical.Footnote 178 Finally, the character of the Strasbourg Court too must not be oversimplified or caricatured as always endorsing an expansive interpretation of its own jurisdiction.Footnote 179
The point here is not to flatten these nuances or to present a single explanation for the different approaches of each tribunal in any given case. Instead, the point is much more limited. It is simply that the different space within the architecture of international tribunals that organs such as the ICJ, UNCLOS tribunals, and Appellate Body occupy, in contrast to the ECtHR and ICC, might influence their approaches to the issues explored in this article.Footnote 180 Which of the three approaches a tribunal adopts in any given case, therefore, may give some insight into how a particular tribunal understands its function. Importantly, as noted above, other considerations including the jurisdictional basis, the applicable law, and the substantive area of law will also all likely influence a particular tribunal's approach in a specific case.
These considerations regarding why one tribunal adopts the approach it does in a particular case might also help to inform our view of when each approach could be appropriate, whilst keeping in mind the caveat that any firm conclusion on this can only be made on a case-by-case basis. The severability approach, of course, offers a balance between enabling the tribunal to contribute to resolving the specific claim whilst remaining faithful to the principle of consent. It thus offers an attractive default option for any tribunal with a limited jurisdiction that is facing the types of jurisdiction or admissibility challenges discussed in this article.
The restrictive approach, though similarly reflective of the enduring role of consent in international dispute settlement, is more extreme, as the tribunal refuses even to rule on the issue over which it seems to have jurisdiction where that would have implications for the broader dispute over which it does not. Where the nature of a particular tribunal is firmly rooted in the inter-State dispute settlement tradition, and particularly where there is no compulsory jurisdiction, adherence to the consent of the disputing States might be thought to carry special weight given its important legitimising role.Footnote 181 Given this, the restrictive approach might be thought the more appropriate option for such tribunals. However, since this approach involves a complete renunciation of any judicial role in settling the dispute before the tribunal, it should only exceptionally be followed. Indeed, as noted, the ICJ and UNCLOS cases adopting this approach all have either strong jurisdictional and/or substantive law justifications for doing so.Footnote 182
Applying the restrictive approach beyond those specific contexts is problematic. The Philippines v China Tribunal's version of the restrictive approach, for example, is arguably too broad to be applied more generally by international tribunals, as it leaves no room for a tribunal to make a necessary incidental determination prior to ruling on the specific claims before it, no matter how minor is the incidental determination.Footnote 183 Indeed, as the line between interpretation and application blurs, the Philippines v China approach risks excluding an important source of legal reasoning.Footnote 184 Furthermore, whilst the approach of the Mauritius v UK tribunal was more balanced, recognising minor incidental sovereignty determinations to fall within the jurisdiction of UNCLOS tribunals, its focus on the character of the dispute (‘the real issue in the case’) is a challenge to the entire phenomenon of disaggregation of disputes. That is to say, rejecting a claim on the basis that it does not reflect the ‘real’ dispute fails to recognise that bringing highly specific legal claims as a means of litigating one part of a much broader (and perhaps quite different) dispute is a consequence of this structural feature of international judicial settlement.Footnote 185
Finally, the expansive approach suggests much less of a preoccupation with consent than the other two approaches, and, again, the possible explanations for the ECtHR's use of this approach offer some guidance as to when it might be appropriate. Thus, the conferral by States on the ECtHR of compulsory jurisdiction, combined with its focus on claims that transcend the traditional inter-State dispute settlement model, suggest that its legitimacy is derived less from the continuing influence of consent and more from its function as a rule of law institution. This view of the Court is, of course, supported by its status as a human rights court, applying rules that it has at times explicitly held to be ‘special’ within the broader field of public international law.Footnote 186 The same arguments would seem to apply, mutatis mutandis, to the ICC. It is clear, however, that the more traditional institutions, particularly the ICJ, for whom the continuing role of consent plays a significant legitimising function, may face a greater challenge in justifying the expansive approach,Footnote 187 though, again, other considerations may prove decisive.
V. Concluding Remarks
This article has explored the phenomenon of what is termed the ‘disaggregation of disputes’, by which is meant the separation of broad inter-State disputes into discrete legal claims before different international tribunals, each with a specialised jurisdiction. In so doing, the article employs the ongoing Ukraine/Russia dispute as a case study in this phenomenon, considering the range of legal claims before different international courts and tribunals, the relationship between them, and the potential jurisdictional challenges that can arise as a result of this disaggregation. Importantly, as these cases are ongoing, the article draws on previous case law across a range of tribunals. In so doing, it reveals three broad approaches to these issues, offering an original analytical framework of relevance beyond the Ukraine/Russia litigation to international dispute settlement more generally. Which approach each tribunal seised in the Ukraine/Russia dispute might take remains to be seen.
The analysis reveals significant variance in how international tribunals engage with the phenomenon of disaggregation, both across different tribunals and across different cases before the same tribunal. It has been asked whether one might discern a general principle regarding how international tribunals address cases in which a broader dispute over which they do not have jurisdiction is implicated in the process of adjudicating the claims over which they do have jurisdiction.Footnote 188 However, the variance revealed by the above analysis does not augur well for such a general principle. Indeed, as set out in Section IV, there are various case-specific considerations that might influence the approach of a tribunal to this issue in any given case. Furthermore, as argued in that section, the understanding of a particular tribunal to its function might also play some role here. Attempting to distil a general principle may not, therefore, be fruitful.Footnote 189
It should finally be repeated that this article has not sought to engage with the normative debates surrounding the multiplication of international courts and tribunals. The fact that the structure of international dispute settlement can result in the disaggregation of disputes has been presented as both a blessing and a curse. For some, the opportunity that this provides for States to litigate and potentially resolve discrete legal aspects of long-term and intractable disputes is significant.Footnote 190 For others, this disaggregation of disputes carries with it such negative externalities as forum-shopping, overlapping jurisdiction, and abuse of process.Footnote 191 Indeed, Russia's arguments in these cases has extended to such objections. For example, in its preliminary objections to Ukraine's application to the ICJ, Russia argues that ‘the claims brought before the ICJ and the ECtHR have the same essential basis: they rely on the same facts, they allege violations of the same basic rights and they seek equivalent remedies’.Footnote 192 Moreover, in its preliminary objections to Ukraine's 2016 UNCLOS claims, Russia argues that Ukraine's alleged shoehorning of the sovereignty dispute over Crimea into the Convention constitutes a ‘misuse of the process’ under Part XV UNCLOS.Footnote 193 Whether any of the tribunals involved in the Ukraine/Russia cases would accept such lis pendens or abuse of process-based arguments remains to be seen.Footnote 194 Given that multiple, overlapping claims are a consequence of the disaggregated nature of international judicial settlement, such objections are likely to continue to arise in future cases.
