ICJ의 선택선언에 대한 유보의 유형 분석 = A Study on the optional clause of the ICJ Statute

다국어 초록 (Multilingual Abstract)

It is an elementary principle of international law that a State is entitled to
protest its subjects,. when injured by acts contrary to international law committed
by another State. Contemporary international law enjoins the subjects of international
law to settle their disputes by peaceful means.
The peaceful means of settling international disputes fall into two broad
categories: diplomatic and adjudicatory. The parties may seek to do this either
directly between themselves or with the aid of a third person.
The States parties to the Statute of the Court may “at any time declare that
they recognize as compulsory ipso facto and without special agreement, in relation
to any other State accepting the same obligation, the jurisdiction of the Court”(Art
36, para. 2 of the Statute).
Each State which has recognized the compulsory jurisdiction of the Court has
in principle the right to bring any one or more other State which has accepted the
same obligation before the Court by filing an application instituting proceedings
with the Court.
The declarations, deposited by a total of 65 States, are decisions to accept
compulsory jurisdiction under the Optional Clause governing the International Court
of Justice occurred with similar to the procedure for the approval of a treaty.
Parties can declare that it’s recognise as compulsory ipso facto and without
special agreement, in relation to any other State accepting the same obligation, the
jurisdiction of the International Court of Justice in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to
the Secretary-General of the United Nations withdrawing this declaration.
But, these declarations does not apply to,
(a) any dispute in regard to which the parties thereto have agreed or shall agree to
have recourse to some other method of peaceful settlement;
(b) any dispute concerning or relating to the delimitation of maritime zones,
including the territorial sea, the exclusive economic zone and the continental
shelf, or arising out of, concerning, or relating to the exploitation of any disputed
area of or adjacent to any such maritime zone pending its delimitation;
(c) any dispute in respect of which any other party to the dispute has accepted the
compulsory jurisdiction of the Court only in relation to or for the purpose of
the dispute; or where the acceptance of the Court's compulsory jurisdiction on
behalf of any other party to the dispute;
(d) disputes with regard to questions which by international law fall Eaaentially
(exclusively) within the jurisdiction of Parties;
(e) disputes arising out of or concerning jurisdiction or rights claimed or exercised
by Parties in respect of the conservation, management or exploitation of the
living resources of the Sea, or in respect of the prevention or control of
pollution or contamination of the marine environment in marine areas adjacent
to the coast of Parties;
(f) These declarations are made subject to ratification. It shall take effect on the
day of deposit of the instrument of ratification for some periods or not Upon
the expiry of that period, it shall continue to have effect until notice of its
termination is given;
(g) disputes with the government of any other country which is a member of the
Commonwealth, all of which disputes shall be settled in such manner as the
parties have agreed or shall agree;
(h) disputes relating to facts or situations originating in armed conflicts or acts of
a similar nature which may affect the territory of Parties which it may find
itself involved directly or indirectly.
The wider acceptance of compulsory jurisdiction is an essential element in the
rule of international law, but there has been a tendency for an increasing number
of States accepting the optional clause to exclude from the jurisdiction of the Court
matters of domestic jurisdiction as determined by themselves. However, internatio...