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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?