The Death Knell of Forum Prorogatum or: : How the ICJ Missed its Opportunity to Generate its Own Jurisdiction

Described as the granting of jurisdiction after the initiation of judicial proceedings, the principle of forum prorogatum was a doctrine that appeared in the earliest of cases before the Permanent Court of International Justice, creating hopes for those who favour a rigorous international court whose jurisdictional powers are not constrained by strict notions of State consent. Nevertheless, rather than taking off and becoming a fundamental jurisdictional tool at the hands of the Court, forum prorogatum has gradually come to be viewed as a dangerous principle that would jeopardise the standing and function of the Court. Even as the principle was incorporated into the Rules of the Court, it eventually retreated into the black and white pages of textbooks on international law, awakening on extremely rare occasions and only as an afterthought to the main decisions on jurisdiction. With an emphasis on the public function the International Court of Justice seeks to fulfil and the potential law-making nature of enhancing the role of unwritten principles, this article examines the journey of forum prorogatum through the use of judicial activism and judicial restraint by the International Court in order to understand its role and function as a judicial institution in the resulting slumber of the principle of prorogated jurisdiction.