ICJ의 권고적 관할권과 국가 간 분쟁

Abstract

The ICJ excises its jurisdiction on contentious and advisory cases. The advisory jurisdiction of the Court has been considered to facilitate its function based on the Charter, and the need for having a procedure for states to evaluate their legal status before resolving there disputes has been recognized. The jurisdictional power of the Court has often been challenged in practice where the case before it is related to disputes between states for lack of states’ consent and the difficulty of establishing facts. The Court, however, has never refused to give an advisory opinion for lack of states’ consent and the difficulty of establishing facts. In fact, there is some possibility that the excise of advisory jurisdiction of the Court over cases relating to disputes between states might endanger the principle of consent, which is a basis of the Court. Further, establishing facts by the Court might be of great challenge, especially when the case is about disputes between states because ordinary principle of burden of proof does not apply in advisory cases. Korea has never participated in advisory jurisdiction cases, let alone contentious cases. On the other hand, many countries are eager to express their legal points of views even in advisory cases. In fact, most of the advisory cases before the Court might be said to have influenced on Korea’s interests in some way. It would be necessary for Korea to participate more actively in advisory procedures of the Court and to express its views, defending its international interests.