핵군축 협상 의무 사건(2016, Marshall Islands v. U.K.)의 ‘분쟁의 존재’ 판단에 관한 소고 - 소수의견을 중심으로

The existence of disputes is a requirement that must be determined first in order for the court to have contentious jurisdiction. The concept of dispute has been established through precedent jurisprudence, and the Marshall Islands case is evaluated as the first and last case in which the suit was dismissed because the existence of the dispute was not proven at the time of filing. There is heavy criticism that the court intentionally took an overly formalistic approach to avoid the exercise of jurisdiction, and in this regard, Korean academia does not seem to have paid particular attention. Therefore, this paper summarized the controversy over the judgment determining the existence of the dispute, focusing on the dessenting and separate opinions of the judges in the Marshall Islands case, and examined the issue of determining the existence of the dispute. After reviewing the opinions and the academic discourse, this study suggests that there was no reason to deny that the existence of a substantive dispute should be established at the time of filing in any form. In addition, the requirement of objective awareness is not completely new, given the existing jurisprudence. However, it is true that by including such high threshold as an essential requirement for establishing justiciable dispute, proving the existence of a dispute in reality is more likely to be conceived as a formal issue. This is contrary to the position of the court, which has said that determination of the existence of a dispute is a matter of substance, and not a question of form or procedure. The Marshall Islands case seems to have served as an opportunity to arouse our interest in what is an non-justiciable dispute. As is well known, through fierce debate in academia during the 19th to 20th centuries, issues of honor, dignity, independence, and national interest or non-tangible issues that cannot be judged by third parties have been mentioned as non-justiciable disputes. If the court analyzed the substantive nature of the dispute, it is questionable whether the violation of the obligation to negotiate nuclear disarmament can be characterized as a non-justiciable issue belonging to this category. Perhaps the court's decision could be a roundabout confirmation of the British's last preliminary objection that reads “in any event, the Court should decline to exercise its jurisdiction in this matter on the ground that any judgment it may give will have no practical consequence and the matter therefore falls outside the proper judicial function of the Court”.