Doctrine of “Forum Prorogatum”

Consent to submit to the international court’s jurisdiction is given even after proceedings as in an implied way.

Philippine Reservation

Compulsory jurisdiction of the ICJ ipso facto except:

Parties agree to recourse to other method of peaceful settlement;

Domestic jurisdiction;Other party: ICJ jurisdiction is

limited or does not satisfy a “time element” of ratification

Philippine ReservationMultilateral treaty:

(1) Parties to the treaty are all parties to the case;

(2) PHL specially agrees to jurisdiction.

Jurisdiction or rights claimed or exercised by the PHL: (a) natural resources; (b) territory

ICJ Jurisdiction in Virtue of State’s adherence to the Statute (Five Cases)

Provisional measuresPower to construe its judgmentDispute over its jurisdictionPower to allow a State to

intervenePower to file a unilateral

application

Justiciable Cases

Legal disputes concerning: Interpretation of a treatyAny question of international lawThe existence of factReparation

CONCEPT

Ex Aequo et bono

“From equity and conscience”Article 38(2) of the Statute of

the International Court of Justice (ICJ) provides that the court may decide cases ex aequo et bono, but only where the parties agree thereto.

Procedure in CourtConsist of two parts: (1) oral and

(2) written.Application of the state, through

a memorial and a counter-memorial by the respondent.◦MEMORIAL: Sets out the case and

the submissions. ◦COUNTER-MEMORIALS: Admits or

denies the statement of facts and law in memorials.

Points of Information

Technical procedural points not given much importance by the Court, unlike in municipal courts.

Procedures in CoutsBefore trial on the merits, a

preliminary hearing is conducted By the president of the courtTo simplify:

◦Procedural matters◦Process proofs◦Produce stipulation of facts

Procedures in CourtsPreliminary objects are

entertained:◦Jurisdiction of the Court◦Condition precedent◦Interpretation of treaties◦Local remedies exhausted

Interim MeasuresThe Court may order any

provisional measure such as:◦Mandatory or Prohibitory injunction

Procedures in CourtOral proceedings: Court hears

witnesses, experts, agents, counsels and advocates.

Hearing is PUBLIC, unless the Court deems otherwise or parties demand public not to be admitted

Questions decided by majority of judges present. In case of a tie, the President or his alternate will break it.

Procedures in CourtThe judgment in final, but the

Court may interpret it. Revision not entertained, unless

based:◦Discovery of some facts that are

decisive factors◦Unknown to the Court and to the

party claiming revision◦Ignorance not due to negligence

Procedures in CourtJudgment binding only to the

parties

Principle of res judicata applies◦"The Court, whose function is to

decide in accordance with international law such disputes as are submitted to it, shall apply: ... c. the general principles of law recognized by civilized nations".

Enforcement of JudgementsLack of centralized force presents

difficulty in enforcement of decisionsExample: Corfu Channel case

Compliance relies on good faith. Recourse of the winning party:◦Self-help◦Cooperation with third state◦Municipal courts◦International institutions

SELF-HELPUse of force is prohibited (Art. 2

of the UN Charter)“Coercive sanctions” traditionally

sanctioned as “self-help” by the winning party.

Diplomatic/Economic measures may also be availed

Actions of International InstitutionsArt 94 (2) of the United Nations

Charter◦Collective action to secure

enforcement of judgmentComplaint for non compliance

may be filed with the GENERAL ASSEMBLY◦Ground: It affects the maintenance

of international peace◦Security Council decision obligatory to the judgment debtor

Advisory OpinionAdvisory opinion at the request

of the General Assembly, etc. State may avail of advisory

opinion to redress grievances against a UN organ/specialized agencies

No binding character, only advisory

Res judicata does not applyPolitical ramifications

Role in the International Community

Originally envisioned as a true international court for settling legal disputes among States.

Amendment to StatuteCoquia-Santiago recommends

removal or ammendment of optional and reservation clauses.

Regional Agencies or ArrangementsAMERICA

◦Treaty to Avoid or Prevent Conflicts between American States

◦General Treaty of Inter-American Arbitration

EUROPE:◦Treaty of Economic, Social, and Cultural

Collaboration and Collective Self-Defense◦European Convention for Peaceful

Settlement of Disputes (Council of Europe)

Regional Agencies or ArrangementsASIA

◦Association of South East Asian Nations (ASEAN)

International Tribunal of the Law of the SeaRATIONALE:

◦Special competence is needed◦Administrative, rather than strictly legal

approachA permanent tribunal able to function

more expeditiously where time element is of the essence (Third UN conference on the Law of the Sea)

More accessible to states, corporate entities and individuals

International Tribunal of the Law of the SeaCOMPOSITION:

◦21 independent members◦Elected◦Highest reputation of integrity and

fairness◦Recognized Competence◦No two national at the same state◦Equitable geographical

representation◦Principal legal systems

International Tribunal of the Law of the SeaJURISDICTION:

◦All disputes and applications in accordance with the Convention or any other agreement conferring jurisdiction to the Tribunal.

Compulsory Jurisdiction