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50 N.Y.U. J. Int'l L. & Pol. 447 (2017-2018)
The Implicated Issue Problem: Indispensable Issues and Incidental Jurisdiction

handle is hein.journals/nyuilp50 and id is 457 raw text is: THE IMPLICATED ISSUE PROBLEM: INDISPENSABLE ISSUES AND INCIDENTAL JURISDICTION PETER TZENG* The doctrine of indispensable parties ensures that international courts and tribunals do not exceed their jurisdiction ratione personae. Should there be a parallel doctrine of indispensable issues to ensure that they do not exceed their jurisdiction ratione materiae? This Article answers this question in the negative. In doing so, the Article makes a descriptive and a normative argu- ment. On the descriptive level, the Article argues that courts and tribunals have developed a consistent approach to the implicated party problem (called the doctrine of indispensable parties) but have not developed a consistent approach to the implicated issue problem. On the normative level, the Article argues that the approach courts and tribunals take to the implicated party problem should not necessarily parallel the approach they take to the impli- cated issue problem because of key differences between jurisdiction ratione personae and jurisdiction ratione materiae. I. INTRODUCTION .................................... 448 II. THE IMPLICATED PARTY PROBLEM ................. 456 A. The Problem ................................. 456 B. Theoretical Framework ........................ 459 C. Jurisprudence ................................ 461 1. Monetary Gold (Italy v. France, United Kingdom, United States) .................. 461 2. Military and Paramilitary Activities (Nicaragua v. United States) .............. 463 3. Certain Phosphate Lands (Nauru v. Australia) ............................... 464 * Associate, Foley Hoag LLP; Diploma, The Hague Academy of Inter- national Law; J.D., Yale Law School; A.B., Princeton University. Email: ptzeng9O@gmail.com. The author would like to thank Guillaume Guez, Daniel Kaasik, Philipp Kotlaba, Michele Krech, Manuel Casas Martinez, Claire O'Connell, and Mawuse Vormawor for their feedback on earlier drafts of this Article. The views expressed in the Article are solely those of the author, and do not necessarily reflect the views of any institution with which the author is affiliated. The Article is based on a blog post by the author published on EJIL: Talk!. See Peter Tzeng, The Doctrine of Indispensable Issues: Mauritius v. United Kingdom, Philippines v. China, Ukraine v. Russia, and Beyond, EJIL: TALKI (Oct. 14, 2016), https://www.ejiltalk.org/the-doctrine- of-indispensable-issues-mauritius-v-united-kingdom-philippines-v-china- ukraine-v-russia-and-beyond/. 447 Imaged with Permission of N.Y.U. Journal of International Law and Politics

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