국제법상 compétence de la compétence 원칙에 관한 연구

In the past decade, the States have increasingly shown a tendency to conclude ante hoc consent on judicial dispute settlement mostly by way of inserting compromissory clause into their bilateral or multilateral treaty which allows either of the parties can bring the dispute to the international judicial body unilaterally. Moreover, the trend of the institution of proceedings before the international court has shown that the dispute parties have increasingly seized the court resorting to the unilateral application. It is expected that the number of challenges to the court’s jurisdiction would increase since the clauses are normally comprehensive and wide. In other words, it is a matter of whether or not the treaty covers a subject matter brought before the international court. Focusing on this new trend surrounding the international court, it is worthwhile to revisit compétence de la compétence. In order to resolve the international disputes properly and effectively, it is necessary that the court should be assured of its power to exercise compétence de la compétence as widely as possible. Therefore, this study will mainly focus on three subjects as following: firstly, by historically studying the existing discussion and jurisprudence, it will trace the flow of the development of compétence de la compétence; secondly, it will examine the sources of compétence de la compétence as the inherent power of the international court and its limits; thirdly, it will suggest the future matters regarding compétence de la compétence which should be dealt with in international law. Compétence de la compétence, the power to determine its own jurisdiction, is well established as a general principle by international jurisprudence and reflected in most of the statutes of the international courts. As mentioned above, compétence de la compétence is the essential factor for court to control the proceeding before it. In other words, the court could prevent its process from being obstructed and maintain its authority based upon this power. According to ICJ jurisprudence, the power for the court to determine its jurisdiction is inherent and it is emphasized by the feature of an judicial institution which is based upon the constituent instrument defining its jurisdiction and operation. In principle, it cannot be said that compétence de la compétence exercised by the international courts is absolute and unconditional like a domestic court. Based upon the consensual jurisdiction, the court could be deprived of the power if there were the clause of reservation, such as the clause contaire or the self-judging clause. This conclusion would appear to be natural if no party submitted the dispute to the court on the basis of such clauses. However, once either party brings the matter which the other considers reserved, it is valid that the court could exercise compétence de la compétence to determine whether or not it would fall within the scope of its jurisdiction. This is because there would not be any agreement on the reservation. Considering the purpose of the compromissory clause and the intention when both parties made a conclusion of the treaty, the court should take a teleological approach to make the dispute resolved. On the other hand, admitting the widest competence of the international court could raise concerns about excessive exercise of the power, or ultra vires to widen its jurisdiction because it is rarely found that the international court dismissed its jurisdiction in practice. Furthermore, the fact that the hierarchy of the international judicial system is absent could lead the parties to be unwilling to resort to international judicial bodies. Examining ICJ judgments, it rejected reviewing a decision of jurisdiction by other tribunals because the award was final and it confirmed that the tribunals have the power to determine their own jurisdiction. However, it is hard to consider that allowing the international courts to exercise the widest competence per se is the fundamental problem. To repel fear of ultra vires and to have international jurisdiction complete, it will be more desirable and practical that international courts and tribunals should practice greater judicial restraint and determine to decline jurisdiction whenever the states involved have clear reasons for objecting to its exercise. Nevertheless, it could not be the fundamental solution. Given the changing trend of using international courts, it appears to be required to have a newly developed international judicial system, which is built upon international judicial hierarchy. This should be closely examined to further the international judicialization by means of establishing international procedural rules.