STUDY OF MINISTER KIM'S REPORT ON THE POSSIBILITY OF SURMITTING THE DEPORTATION CASE TO THE I.C.J.
I. MINISTER KIM'S REPORT
According to a report from Minister Yong Shik Kim in Geneva, Professor Guggenheim, an eminent international lawyer, told him that the deportation case could be taken up at the International Court of Justice (I.C.J.) at the Hague under Article 35 of the Court's Statute, and that an interim measure could be requested at the time of application. If, on the other hand, Japan refuses to appear before the Court, the burden on refusing judicial settlement would rest with Japan.
II. LEGAL ANALYSIS AND ACTUAL PROVISIONS OF I.C.J. STATUTE
1. Access to the I.C.J.
(1) It is, first of all, reminded that the Republic of Korea is not a party to the I.C.J. Statute. By virtue of Article 92 of the UN Charter, the I.C.J. was made the principal judicial organ of the UN. Accordingly, under Article 93, paragraph 1, all UN members are ipso facto parties to the Statute. Under paragraph 2 of the same Article, a non-member State may become a party to the Statute on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council. (As the voting on this matter in the Council is of a substantial one, the recommendation requires seven affirmative votes, including those of the all permanent members of the Security Council.)
In order to become a party to the I.C.J. Statute, therefore, the Republic of Korea must either be admitted to the United Nations, or has undergone the procedures prescribed in Article 93, paragraph 2, of the Charter. Such being the case, there is at present little prospect that the Republic of Korea could become a party to the I.C.J. Statute in the near future.
(2) Article 35, paragraph 2, of the I.C.J. Statute provides that the Court will be open to States other than parties to the Statute upon conditions to be laid down by the Security Council. Pursuant to this provision, the Security Council adopted on October 15, 1946, a resolution laying down the said conditions:
a. A State which is not a party to the Statute, and which wishes to have access to the I.C.J., must previously have deposited with the Court a declaration, accepting the jurisdiction of the Court, undertaking to fulfil the obligations provided for in Article 94 of the UN Charter, etc.
b. Such declaration may be either particular or general -- accepting the Court's jurisdiction (i) either in respect of a particular dispute which has already arisen, (ii) or in respect of all, or a certain class or classes, of disputes.
Therefore, our Government may avail itself of these provisions if we are to submit the deportation case to the I.C.J, for judicial settlement by making a particular declaration accepting the Court's jurisdiction in respect of the deportation case, aside from the question as to whether Japan will appear before the Court.
2. Competence of the Court
The general principle of international law holds that no State can be compelled to litigate against its will. The I.C.J. also stands on this principle.
However, there are two categories of obligatory jurisdiction by the I.C.J.
(1) Cases that could be brought to the I.C.J. by only one party by virtue of obligatory provisions specially provided for in treaties or conventions in force.
(2) Cases in which one party could bring another to adjudication before the I.C.J. because both parties had accepted the provisions of Article 36 of the I.C.J. Statute (known as the Optional Clause).
At present, aside from certain universal conventions, there exists no specific agreement with Japan particularly with regard to the deportation case, which obligates both the Republic of Korea and Japan to submit a dispute to the I.C.J. for compulsory jurisdiction.
As for the Optional Clause, Article 36, paragraph 2, of the Statute provides that States parties to the Statute may declare at any time that they recognize as compulsory ipso facto and without special agreement, in relation to any other States parties to the Statute accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning the following four categories, attaching thereto virtually any conditions as it deems preferable:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an international obligation;
d. the nature or extent of the reparation to be made for the breach of an international obligation.
In accordance with this provision, Japan which had become ipso facto a party to the I.C.J. Statute upon being admitted to the UN, deposited on September 15, 1958, with the Court its accepiance of the Optional Clause, emphasizing specifically the condition of reciprocity.
If the Republic of Korea were a party to the Statute, we could compel Japan to refer the deportation case to the I.C.J., first by accepting the Optional Clause, and then by claiming that the Japanese deportation scheme is in violation of the Agreed Minutes signed between the Republic of Korea and Japan on December 31, 1957, and that it falls under the four categories of legal (or contentious) disputes as enumerated in Article 36, paragraph 2, of the Statute, most probably the breach of an international obligation. However, since we are not a party to the Statute, this provision does not apply to us.
By virtue of the Security Council resolution of October 15, 1946, we can accept the Optional Clause only after having made a general declaration accepting the Court's jurisdiction in respect of all, or a certain class or classes of, disputes. However, according to this resolution, acceptance of the Optional Clause by a State not party to the Statute (the Republic of Korea ), cannot, without explicit agreement, be relied upon vis-a-vis a State which is a party to the Statute, and which has already accepted the Optional Clause (Japan ).
Therefore, the only way to bring Japan before the I.C.J. must be through its own consent.
III. POINT OF VIEW
In the perspective of the above considerations, and also judging from Minister Kim's subsequent reports, it is obvious that Professor Guggenheim 's opinion is based on the following reasoning:
1. Our Government, by cable from Seoul and later by regular letter, would deposit with the Registrar of the Court a particular declaration accepting the Court's jurisdiction in respect of the deportation case (under Article 35 of the Statute), and our representative would file an application (under Article 32 of the Rules of Court). When the I.C.J, has transmitted a copy of the above application to Japan, the Japanese Government would clarify, either at the Court or without appearing before the Court, whether it agrees or refuses the judicial settlement of the matter.
2. When filing the application, our Government would, at the same time, request the Court to indicate an interim measure to suspend the implementation of the Japanese decision to "repatriate" en masse Korean residents in Japan to the Communist north, on the ground that so long as the case is pending before the Court, the Japanese Government must not take any unilateral action. If Japan agrees to the adjudication of the deportation case before the I.C.J., the Court proceedings would then be initiated and the above-mentioned interim measure could be obtained.
3. On the other hand, if Japan should refuse to refer the case to the I.C.J., the burden, morally and physically, for refusing the judicial settlement would then rest with the Japanese Government, and we would be able to launch a propaganda campaign against Japan.
(Theoretically, we may be able to make a general declaration followed by the acceptance of the Optional Clause, and then request the Japanese Government to give the "explicit agreement" to refer the case to the I.C.J. In this case, it is natural that the burden would be much heavier for the Japanese, since we would then stand substantially on the same condition of reciprocity with Japan as far as the compulsory jurisdiction of the I.C.J. is concerned.)
This kind of strategy deserves our serious consideration; for, by suddenly taking measures to refer to the I.C.J. the deportation case, which is now entering into the final stage, we would be able to cause a great deal of turmoil to the Japanese side and thereby create a source of dispute between the Japanese and the Korean Communist elements in Japan. Furthermore, if Japan agrees to the adjudication by the I.C.J. of the deportation case, we might be able to block, at least until the final judgement of the Court, the implementation of the deportation scheme.
On the other hand, some other considerations cannot be dispensed with in this regard. In case we made a particular declaration, it is quite possible that the Japanese Government would simply dismiss our request on the ground that it is entirely within the competence and discretion whether or not to agree to such a request of ours. It would, therefore, give no specific burden to the Japanese Government. The Japanese Government might take this opportunity of bringing up the case of the ownership of Dokto, which it repeatedly requested our Government to refer to the I.C.J. and ask us to agree to their long-standing request in return for their agreement to refer the deportation case to the I.C.J. If Japan should adopt such a tactics, we could refuse it, but it might place our Government in a bad shape. There is also a possibility of Japan's bringing up the issue of the Peace Line, too, though it would be so specific burden to our Government legally.
Moreover, the Japanese Government could claim that the deportation scheme is being carried out by the Japan Red Cross, not by itself, and that, therefore, it could not constitute a subject of litigation on the part of the Japanese Government.
Finally, it must be noted that the final outcome of the adjudication is not predictable, and that if the Court judgement were made in favor of the Japanese, it would give them a legal justification for carrying out the deportation scheme.