The Implicated Issue Problem: Indispensable Issues and Incidental Jurisdiction

Abstract

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 argument. 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 implicated issue problem because of key differences between jurisdiction ratione personae and jurisdiction ratione materiae.

Keywords: international law, courts, tribunals, disputes, settlement, jurisdiction, indispensable parties, indispensable issues, implicated issues