2019년 ICJ의 법원 규칙 개정에 따른 본안전(本案前) 항변(抗辯)의 변동 = Possible Changes in Preliminary Objections under the ICJ Rules of Court as amended in 2019

다국어 초록 (Multilingual Abstract)

The International Court of Justice (“ICJ”) amended its Rules of Court on 21 October 2019, and the amended Rules of Court entered into force on the same day. One of the most striking aspects of this amendment seems to be the reorganization of Article 79 of the previous Rules. An overall comparison between the relevant Articles of the previous Rules and of the amended ones reveals that Article 79, paragraphs 1 through 9, of the previous Rules have been rearranged and partly modified in the new Rules as Articles 79, 79bis, and 79ter, providing for ‘preliminary questions’, ‘preliminary objections’, and the procedures on such questions and objections, respectively. Under the previous Rules, the bifurcation of the proceedings depends primarily on whether or not a party makes preliminary objections. Under the new Rules, however, a party may raise preliminary objections only when the ICJ has not taken any decision that questions concerning its jurisdiction and admissibility of the application shall be determined separately. It is before the submission of pleadings by the parties when the ICJ takes a decision that such preliminary questions shall be determined separately in accordance with Article 79, paragraph 1, of the new Rules, while a party makes preliminary objections under Article 79bis of the same Rules usually after the delivery of the Memorial by the applicant. On the other hand, the ICJ may not decide that the preliminary objections raised by a party be heard and determined within the framework of the merits unless the parties have agreed to that effect. Two possible reasons are conceivable. First, determination of the preliminary objections within the framework of the merits would result in unnecessary pleadings on the merits if the ICJ were proved without jurisdiction or the application inadmissible. Second, the co-called ‘doctrinal paradox’ might occur in some cases.