STUDY OF MINISTER KIM'S REPORT ON THE POSSIBILITY OF SUBMITTING THE DEPORTATION CASE TO THE I.C.J. (CONT'D)

December 2, 1959

In its previous study paper dated November 30, 1959, the Ministry concentrated its focuss of discussion chiefly on the legal and political possibilities which might accrue from submitting the deportation case to the I.C.J. for adjudication vis-a-vis Japan. However, another important aspect of the matter lies in the possibility of the northern Korean puppets' movement if reference of the case to the I.C.J. materialized with the agreement of the Japanese Government.
According to Article 62 of the I.C.J. Statute, if a state considers that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene. It is for the Court to decide upon such a request. Pursuant to this provision the Rules of Court further elaborates that such an application should be filed in the Registry at latest before the commencement of the oral proceedings, etc.
The significance of this provision is that, whilst a state cannot be forced into Court against its will, it does not necessarily mean that a state can be party to a case before the Court only together with that state with which it has -- either specially or generally -- agreed upon referring the case to the Court.
In the light of this provision for intervention of a third party which claims that its interest of a legal nature is affected by the case before the Court, it is feared that, when the court proceedings were intiated with the consent of the Japanese Government, the northern Korean puppet regime might avail itself of this provision and submit an application for intervention to the Court, claiming that the Court's decision would affect their interests as the prospective recipient of the would-be "repatriates."
In such case, a question would first arise as to whether the northern Korean puppet regime could be allowed a locus standi before the Court in the proper meaning of a state as provided for in Article 34 of the Statute ("Only states may be parties before the Court.") Whether the Court would allow such an intervention is not clear. However, it must be noted that qualifications for a statehood in this sense would be gauged strictly in the light of legal requirements, and that the ICJ would, at least, have to examine the admissibility of such an attempt to intervene.
If the Court were to rule that an application for intervention on the part of the northern Korean puppet regime was permissible and subsequently the puppet regime would become a party to the case before the Court, the consequence would be most grave.