국제사법재판소의 정치문제에 관한 결정과 법적 분쟁과의 구별

Disputes continue to arise in the international community, and the ICJ has an obligation to resolve international disputes referred to it in a peaceful manner. Among the cases brought to the ICJ, there are quite a few cases that originate from international political backgrounds, and in this case, the respondent state raises an objection to judicial review, claiming that the dispute which applies political question doctrine is a “political dispute”. However, the ICJ has repeatedly stated in both contentious and advisory proceedings that it will not abandon its role simply because the relevant dispute has political implications. Aside from the jurisprudence of the ICJ, the ICJ shall only decide “legal disputes” under the UN Charter and the ICJ Statute, and should not attempt a political solution, which is the role of the UN General Assembly or the Security Council. Various theories have been argued for the distinction between “legal disputes” and “political disputes”, but there were many problems for the ICJ to accept, and negative views on this distinction itself were also raised. However, the author thinks international disputes can be divided into not only “pure legal disputes” and “disputes in which legal and political elements are mixed” where judicial review is possible, but also “pure political disputes” in which judicial restraint is required. It can be considered to fall under a “pure political dispute” if the treaty explicitly grants authority to the UN’s political institutions, the treaty regulates the ICJ's jurisdiction restrictions, the review standard for judicial review are unclear, or the decision of the political institution must be complied with. Based on these four criteria, major precedents which included political questions were reviewed since 2010 in this article, and the ICJ's judgment seems to be proper, except for the Kosovo case, where an advisory opinion was rendered. In conclusion, the author considers that the ICJ is required to exercise judicial restraint by applying political question doctrine if the dispute at issue is a ‘pure political dispute’, instead of forcibly conducting judicial review on political questions or deliberately avoiding decisions on key politically sensitive questions.