2019년 ICJ의 법원 규칙 개정에 따른本案前 抗辯의 변동

The International Court of Justice (“ICJ”) amended its Rules of Court on 21 October2019, and the amended Rules of Court entered into force on the same day. One of themost striking aspects of this amendment sems to be the reorganization of Article 79 ofthe previous Rules. An overal comparison betwen the relevant Articles of the previousRules and of the amended ones reveals that Article 79, paragraphs 1 through 9, of theprevious Rules have ben rearanged and partly modifed in the new Rules as Articles79, 79bis, and 79ter, providing for ‘preliminary questions’, ‘preliminary objections’, andthe procedures on such questions and objections, respectively. Under the previous Rules,the bifurcation of the procedings depends primarily on whether or not a party makespreliminary objections. Under the new Rules, however, a party may raise preliminaryobjections only when the ICJ has not taken any decision that questions concerning itsjurisdiction and admisibilty of the aplication shal be determined separately. It isbefore the submision of pleadings by the parties when the ICJ takes a decision that suchpreliminary questions shal be determined separately in acordance with Article 79,paragraph 1, of the new Rules, while a party makes preliminary objections under Article 79bis of the same Rules usualy after the delivery of the Memorial by the aplicant. Onthe other hand, the ICJ may not decide that the preliminary objections raised by a partybe heard and determined within the framework of the merits unles the parties haveagred to that efect. Two posible reasons are conceivable. First, determination of thepreliminary objections within the framework of the merits would result in unecesarypleadings on the merits if the ICJ were proved without jurisdiction or the aplicationinadmisible. Second, the co-caled ‘doctrinal paradox’ might ocur in some case