번호 : FTB-502

일시 : DEC 11, 1959

TO : AMB YIU AND DELEGATION
STUDY PAPER: CERTAIN ASPECTS OF ICJ PROCEDURE ETC
I. INTERNATIONAL COURT OF JUSTICE AT THE HAGUE IS PRINCIPAL JUDICIAL ORGAN OF UNITED NATIONS. BY UN CHARTER ARTICLE 92, ALL UN MEMBER STATES ARE IPSO FACTO PARTIES TO ICJ STATUTE, AND NON-MEMBER STATE MAY BECOME PARTY TO STATUTE ON CONDITIONS TO BE DETERMINED IN EACH CASE BY GENERAL ASSEMBLY UPON SECURITY COUNCIL RECOMMENDATION.
II. BY STATUTE ARTICLE 35, ICJ IS OPEN TO NON-PARTY STATES UPON CONDITIONS LAID DOWN BY SECURITY COUNCIL. IN RESOLUTION OF OCT 15, 1946, SECURITY COUNCIL LAID DOWN SAID CONDITIONS:
(1) SUCH STATE SHOULD PREVISOUSLY DEPOSIT WITH ICJ REGISTRAR DECLARATION ACCEPTING ICJ JURISDICTION, UNDERTAKING OBLIGATION TO ABIDE BY COURT JUDGMENT ETC.
(2) SUCH DECLARATION MAY BE EITHER PARTICULAR OR GENERAL; FORMER ACCEPTING ICJ JURISDICTION OVER PARTICULAR DISPUTE WHICH HAS ALREADY ARISEN; LATTER OVER ALL OR CERTAIN CLASS OF DISPUTES.
III. ICJ JURISDICTION IS NOR▣...▣TULSORY. THERE ARE HOWEVER TWO CATEGORIES OF OBLIGATORY JURISDICTION:
(1) CASE BROUGHT TO ICJ BY VIRTUE OF SPECIFIC OBLIGATORY PROVISIONS CONTAINED IN TREATIES OR CONVENTIONS IN FORCE.
(2) CASE WHERE IN BOTH PARTIES ACCEPTED OPTIONAL CLAUSE - STATUTE ARTICLE 36 - NAMELY, COMPULSORY JURISDICTION OVER FOUR ENUMERATED LEGAL DISPUTES.
IV. JAPAN BECAME IPSO FACTO PARTY TO STATUTE UPON ADMISSION TO UN. ON SEPT 15, 1958, JAPAN ACCEPTED OPTIONAL CLAUSE.
V. ROK IS NOT PARTY TO ICJ. THERE EXISTS NO PROVISION WHICH OBLIGATES BOTH ROK AND JAPAN TO REFER ISSUES PENDING BETWEEN THEM TO ICJ FOR ADJUDICATION.
VI. TO HAVE ACCESS TO ICJ, ROK HAS BEFORE IT THREE WAYS:
(A) BE ADMITTED TO UN ; (B) BECOME PARTY TO STATUTE UPON SECURITY COUNCIL RECOMMENDATION; (C) MAKE DECLARATION PROVIDED FOR IN SAID SECURITY COUNCIL RESOLUTION. LAST ONE SEEMS TO BE ONLY AVAILABLE WAY AT PRESENT.
VII. ACCORDING TO SAID SECURITY RESOLUTION, NON-PARTY STATE MAY ACCEPT OPTIONAL CLAUSE AFTER HAVING MADE GENERAL DECLARATION. BUT SUCH ACCEPTANCE ON PART OF NON-PARTY STATE CANNOT BE RELIED UPON, WITHOUT EXPLICIT AGREEMENT, VIS-A-VIS STATE PARTY TO STATUTE WHICH ALREADY ACCEPTED OPTIONAL CLAUSE.
VIII. THEREFORE, THOUGH IT IS LEGALLY POSSIBLE, IT WOULD BE DEFINITELY UNWISE FOR ROK TO ACCEPT OPTIONAL CLAUSE PRECEDED BY GENERAL DECLARATION. IF ROK DID SO, JAPAN WOULD BE ABLE TO DRAG ROK BEFORE ICJ OVER SUCH ISSUES AS DOKTO, PEACE LINE ETC, WHEREAS ROK WOULD BE UNABLE TO COMPEL JAPAN TO APPEAR BEFORE ICJ. SUCH BEING THE CASE, IF ROK IS TO BRING DEPORTATION CASE BEFORE ICJ, IT WOULD BE BY WAY OF PARTICULAR DECLARATION ON OUR PART AND OF JAPANESE AGREEMENT TO REFER THE CASE TO ICJ.
IX. INSTITUTION OF PROCEEDINGS BEFORE ICJ IS INITIATED EITHER BY NOTIFICATION OF SPECIAL AGREEMENT OR BY APPLICATIONS BY STATUTE ARTICLE 40. TO BRING DEPORTATION CASE BEFORE ICJ, ROK MAY MAKE PARTICULAR DECLARATION AND FILE WITH ICJ REGISTRAR APPLICATION, OR MAY ASK JAPAN TO CONCLUDE SPECIAL AGREEMENT. IN FORMER CASE, ICJ WOULD TRANSMIT COPY OF APPLICATION TO JAPANESE GOVERNMENT. IF JAPAN REFUSES TO GO TO ICJ OVER DEPORTATION CASE, IT MAY CLARIFY SUCH ATTITUDE EITHER BEFORE COUR OR WITHOUT APPEARING BEFORE COURT. IN LATTER CASE, MATTER WOULD BE DEALT WITH THROUGH DIPLOMATIC CHANNEL.
X. UNDER STATUTE ARTICLE 41, WHEN CASE IS BROUGHT BEFORE COURT, PARTY TO DISPUTE MAY ASK FOR AND COURT MAY INDICATE PROVISIONAL MEASURES TO PRESERVE RIGHTS.
XI. ACCORDING TO RULES OF COURT, PARTY TO DISPUTE MAY ASK FOR WITHDRAWAL OF CASE ONLY WHEN THE OTHER PARTY CONSENTED TO IT OR HAS TAKEN NO ACTION ON CASE, OTHERWISE, COURT PROCEEDS.
XII. COURT JUDGMENT IS LEGALLY BINDING. IF ONE PARTY FALLS TO ABIDE BY JUDGMENT, THE OTHER MAY HAVE RECOURSE TO SECURITY COUNCIL, WHICH MAY MAKE RECOMMENDATION OR DECIDE UPON MEASURES TO GIVE EFFECT TO JUDGMENT.
XIV. BY STATUTE ARTICLE 62, IF A STATE CONSIDERS THAT IT HAS AN INTEREST OF A LEGAL NATURE WHICH MAY BE AFFECTED BY DECISION IN CASE BEFORE COURT, IT MAY ASK COURT TO BE PERMITTED TO INTERVENE. IF PERMITTED, SUCH THIRD PARTY BECOMES PARTY TO DISPUTE BEFORE COURT TOGETHER WITH ORIGINAL PARTIES.
WOIMUBU