Sienho Yee

Forum Prorogatum Returns to the International Court of Justice

The ICJ interpreted Article 36(1) of its Statute – more specifically, the phrase ‘all cases which the parties refer to it’ – as permitting it to adopt the doctrine of forum prorogatum as a jurisdictional principle and to adapt this doctrine to the circumstances of international judicial process, as an informal way of founding its jurisdiction over the merits of a dispute. The resort to this doctrine has given rise to some concerns and has not received the general acceptance of states. The Certain Criminal Proceedings in France case marks the successful return of the doctrine to the ICJ and shows that the doctrine is a valuable tool for nationalists seeking to protect national interests and for internationalists seeking to promote the peaceful settlement of international disputes.

The Interpretation of “Treaties in Force” in Article 35(2) of the Statute of the ICJ

Every member State of the United Nations is a party to the Statute (the Statute) of the International Court of Justice (the Court or ICJ). 1 In addition, a non-member State may also become a party to the Statute. 2 The Court is open to the States parties to the Statute. 3 As to those States that are not parties to the Statute, Article 35(2) of the Statute provides: The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.