International Court of Justice “Arbitration” Role Explained: A Philippine Practitioner’s Guide

Executive takeaway: The International Court of Justice (ICJ) is not an arbitral tribunal. It is the UN’s principal judicial organ that settles legal disputes between states and gives advisory opinions to UN organs and agencies. Its “arbitration role,” properly understood, is (i) as an alternative forum to arbitration where treaties send disputes to the ICJ, (ii) as a backstop when an arbitration clause says “try arbitration first, then go to the ICJ if it fails,” (iii) as an appointing authority only if a treaty or agreement expressly designates the ICJ (or its President) to make arbitral appointments, and (iv) as a review forum on limited questions (e.g., the validity or interpretation of an arbitral award) only when a separate treaty clause confers that jurisdiction. It is not an appeals court for arbitral awards and has no role in commercial or investor-state cases.

1) What the ICJ is (and is not)

What it is

The world court for state-to-state disputes on questions of international law.
Jurisdiction is always based on consent of the states concerned.
Produces binding judgments in contentious cases; and non-binding advisory opinions at the request of UN bodies.

What it is not

Not an arbitral institution (that’s the Permanent Court of Arbitration (PCA), among others).
Not a human rights court for individuals.
Not available to companies or private persons.
Not an appellate forum for international arbitration awards.

2) How cases reach the ICJ

A case gets to the ICJ only if each state has consented by one of the following:

Special agreement (compromis). Both states sign a document submitting a defined dispute to the ICJ.
Compromissory clauses in treaties. Many multilateral treaties say: if negotiation (sometimes arbitration) fails, either party may refer the dispute to the ICJ.
Optional clause declarations (ICJ Statute, art. 36(2)). States may accept the Court’s jurisdiction in advance for certain categories of disputes—often with reservations. (Relatively few states have done so; consent here is still reciprocal.)
Forum prorogatum. A state sued in the ICJ can later accept jurisdiction expressly or by conduct.

Key implications for the Philippines: consent is dispute-specific. The Philippines can neither sue nor be sued in the ICJ unless there is a valid jurisdictional hook from the list above.

3) Where “arbitration” and the ICJ intersect

A. ICJ as an alternative to arbitration

Many treaties offer parallel paths: arbitration or the ICJ. If the parties name different preferred fora (or if a precondition to arbitration fails), a party may proceed in the ICJ only if the treaty allows it and the other state’s consent condition is met.

B. ICJ as fallback when arbitration fails

Some compromissory clauses require negotiation and/or arbitration first, then allow referral to the ICJ if (i) arbitration isn’t constituted within a set time, (ii) arbitrators can’t be appointed, or (iii) the tribunal is unable to act. The Court’s jurisdiction then rests on that clause—not on any general supervisory power over arbitration.

C. ICJ as appointing authority—rare and only by agreement

Arbitral clauses sometimes (especially in older or bespoke treaties) designate the President of the ICJ to appoint arbitrators if the parties cannot agree. This is purely administrative and creates no adjudicatory role for the Court in the arbitration.

D. ICJ and arbitral awards—no appeal

The ICJ cannot “appeal” an award. In certain inter-state disputes, a separate compromissory clause may let the ICJ decide if an arbitral award is valid, binding, or properly interpreted—that is a new dispute about the award, not an appeal.

4) Procedure before the ICJ (contentious cases)

Seising the Court: A state files an Application setting out parties, facts, legal grounds, and the basis of jurisdiction.
Preliminary objections: The respondent may challenge jurisdiction/admissibility (e.g., lack of consent; failure to meet treaty preconditions like negotiation or arbitration).
Provisional measures: Urgent, temporary measures to preserve rights or prevent aggravation of the dispute.
Written pleadings: Memorials, Counter-Memorials, Replies (and Rejoinders if authorized).
Oral hearings: Public hearings where counsel present and the Court questions both sides.
Intervention: A third state may seek to intervene (Articles 62–63 of the Statute) to protect its legal interests or to address treaty interpretation.
Judgment: Binding on the parties to that case. The Court can also later interpret or revise a judgment under narrow conditions.

Compliance & enforcement: Parties are expected to comply in good faith. If a state does not comply, the other may raise it in the UN Security Council (UN Charter, art. 94(2)). In practice, compliance is driven by diplomacy, reputation, and reciprocal interests.

5) ICJ vs Arbitration (practical contrast)

Constituting the bench:
- ICJ—permanent bench of elected judges; no party appointment (though ad hoc judges may be designated).
- Arbitration—parties typically appoint arbitrators; tribunal formed case-by-case.
Consent mechanics:
- ICJ—must locate consent (treaty clause/special agreement/optional clause).
- Arbitration—consent via treaty clause, compromis, or other agreement; often designed to be easier to trigger.
Procedural flexibility:
- ICJ—uniform court rules, some flexibility.
- Arbitration—greater tailoring (rules, seat, language, confidentiality).
Transparency:
- ICJ—generally public filings and hearings; judgments are published.
- Arbitration—may be confidential (unless rules or treaties require publication).
Remedies & authority:
- Both can declare breaches and order cessation, assurances of non-repetition, and reparation.
- Neither has direct coercive powers; compliance is international-law-based.

6) The Philippines: pathways, use-cases, and cautions

A. Constitutional and institutional setting

The 1987 Constitution adopts “generally accepted principles of international law” as part of Philippine law (incorporation doctrine) and requires Senate concurrence for treaty ratification.
International litigation is typically coordinated by the Department of Foreign Affairs (DFA); representation of the Republic in foreign litigation often involves the Office of the Solicitor General (OSG), sometimes with external counsel.

B. When can the Philippines go to the ICJ?

Treaty compromissory clauses: If a treaty to which the Philippines and the respondent state are parties directs disputes to the ICJ (sometimes after failed arbitration or negotiation), the Philippines may file—strictly following all preconditions.
Special agreement with the other state: If diplomatic conditions allow, both states can sign a compromis for the ICJ.
Optional clause reciprocity: If both states have compatible declarations accepting compulsory ICJ jurisdiction, disputes within the overlap may be brought.

C. When not to expect ICJ jurisdiction

No mutual consent: If the other state has neither an applicable compromissory clause nor a compatible optional-clause declaration—and won’t sign a compromis—the ICJ will not have jurisdiction.
Investor-state or commercial disputes: These are not for the ICJ; they go to treaty-based or contract-based arbitration.
Maritime disputes under UNCLOS where fora diverge: Under UNCLOS Article 287, states choose fora (ITLOS, ICJ, Annex VII arbitration, or special arbitration). If choices don’t match, Annex VII arbitration is the default—not the ICJ.

D. Typical Philippine dispute scenarios

Treaty interpretation/compliance (e.g., environmental, anti-torture, counter-terrorism, suppression of unlawful acts).
- Many such treaties contain “negotiate → (maybe arbitrate) → ICJ” clauses.
- Checklist: confirm both states’ treaty status and reservations; document negotiations; send a formal arbitration or negotiations notice if required; observe any waiting periods before filing in the ICJ.
Boundary or maritime disputes with a willing counterpart.
- ICJ is a credible forum if the other state consents (compromis or treaty clause).
- If fora selections under UNCLOS do not align, expect Annex VII arbitration by default rather than the ICJ.
Disputes about an arbitral award between states.
- Only if there is a separate treaty clause conferring jurisdiction may the Philippines or its counterpart ask the ICJ to decide validity/interpretation of that state-to-state award.

7) Jurisdictional pitfalls Philippine counsel must manage

Preconditions are jurisdictional. Many compromissory clauses require good-faith negotiations and/or attempted arbitration first. Document everything (notes, aide-mémoire, diplomatic correspondence).
Reservations & declarations matter. A single reservation by either state may remove the ICJ path; verify treaty actions carefully.
Monetary Gold / indispensable third-party interests. If deciding the case would necessarily determine the legal responsibility of an absent third state, the ICJ may decline jurisdiction.
Temporal limits. Some clauses exclude disputes arising before treaty entry into force or before optional-clause declarations.
Scope of consent. Make sure the precise dispute (facts and legal questions) falls within the clause’s terms.

8) Remedies and outcomes the ICJ can order

Declarations of breach or non-breach.
Cessation and non-repetition undertakings.
Reparation: restitution (rare), compensation, satisfaction (acknowledgment of breach, apologies, etc.).
Interpretation or revision of a judgment (narrow conditions and strict time limits).

No punitive damages; no criminal liability; no direct orders to domestic courts or private entities.

9) Strategy: ICJ or arbitration for the Philippines?

Choose ICJ when:

A clean treaty hook points to the ICJ (or to it after failed arbitration), the issues are predominantly legal, and a public, precedential judgment is advantageous.
The Philippines wants a broader legal pronouncement with authoritative weight for diplomacy and international opinion.

Choose arbitration when:

Party-appointment of arbitrators, procedural flexibility, or confidentiality is important.
Under UNCLOS, where fora diverge and Annex VII arbitration is the default.
A faster, bespoke process is desired (subject to case complexity).

10) Practical playbook for Philippine government lawyers

Map jurisdiction early. Identify every plausible consent basis. Build a matrix of treaties, reservations, preconditions, and windows/notice periods.
Satisfy preconditions. Send well-crafted negotiation or arbitration notices; give the required time; propose modalities in good faith.
Preserve evidence. Treaties, charts, hydrographic data, diplomatic notes, legislative history, expert reports; maintain a litigation hold across agencies.
Plan for provisional measures. Assess urgency and the plausibility of rights asserted.
Intervention strategy. Consider third-state interests; prepare for interventions or declarations of intervention.
Public diplomacy. An ICJ case is public; align legal, diplomatic, and communications strategies.
Domestic coordination. Establish an inter-agency tasking order (DFA lead), designate the Agent and Co-Agent, and align with the OSG; retain external counsel and technical experts as needed.
Remedies and compliance path. Decide what relief is realistically enforceable; plan follow-up in international organizations and bilateral channels.
Budgeting & timelines. Resource the case appropriately; build for a multi-year process.
Contingency for settlement. Maintain an off-ramp: litigation often catalyzes negotiated settlements.

11) Frequent misconceptions (quick fixes)

“The ICJ runs international arbitrations.” No. It is a court. Arbitration is separate; sometimes treaties point from arbitration to the ICJ if arbitration fails.
“We can appeal an arbitral award to the ICJ.” No. There is no appellate jurisdiction over awards.
“Private parties can sue in the ICJ.” No. Only states (and only with consent).
“ICJ judgments automatically apply in local courts.” They are binding on the states internationally; domestic legal effect depends on internal law and practice.

12) Philippine checklist before invoking the ICJ

Identify the treaty clause or other consent route.
Verify both states’ treaty membership, reservations, and declarations.
Complete and document negotiations/arbitration preconditions.
Decide on relief requested (declarations, cessation, reparation).
Prepare a jurisdictional memorial (build for preliminary objections).
Assemble a government inter-agency team (Agent, counsel, experts).
Plan for provisional measures (if urgent).
Draft the Application and supporting evidence; line up witnesses/experts.
Prepare communications strategy; anticipate third-state interventions.
Map post-judgment compliance and diplomatic follow-through.

Final word

For the Philippines, the ICJ is a powerful state-to-state forum when the legal and jurisdictional stars align. But it is not “arbitration,” and it does not supervise arbitration except where a treaty expressly invites it to play a limited, defined role. The smart Philippine strategy is to treat the ICJ and arbitration as complementary tools—choose the right forum for the right dispute, satisfy every precondition with care, and align legal arguments with diplomatic goals.

(This guide is for general information and capacity-building; it is not legal advice for any specific dispute.)