actio popularis에 대한 국제사법재판소 판례의 입장 변화 검토 (An Analysis of actio popularis in the Jurisprudence of the International Court of Justice)

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초록

In its early stage, the ICJ did not admit the obligations erga omnes. After Barcelona Traction case, the ICJ recognized the existence of the obligations erga omnes. In the Barcelona Traction case, the ICJ mentioned the erga omnes in the legal standing phase and viewed the actio popularis possibly being accepted in the international law. But there was a skeptical view about its acception in the International law forum with a reason that ICJ’s view was just orbiter dictum in the Barcelona Traction case. Later stage of the ICJ, the erga omnes has not well settled in the International Law. Since the ICJ muddled the rights erga omnes with obligations erga omnes in the East Timor case and Israeli Wall case. After the year 2000, the ICJ came to recognized and admitted actio popularis properly. In the Armed Activities on the Territory of the Congo case, even in his Separate opinion, Judge Bruno Simma viewed the ILC Draft on State Responsibility, Article 48 could be a legal basis of actio popularis. And nextly in the Obligation to Prosecute or Extradite case, ICJ’s majority opinion decided that a violation of the Convention against Torture could be a violation of the obligations erga omnes against a international community, so that a State party of the Convention can claim cessation of the wrongful act. It can be a recognized as actio popularis.

영어초록

In its early stage, the ICJ did not admit the obligations erga omnes. After Barcelona Traction case, the ICJ recognized the existence of the obligations erga omnes. In the Barcelona Traction case, the ICJ mentioned the erga omnes in the legal standing phase and viewed the actio popularis possibly being accepted in the international law. But there was a skeptical view about its acception in the International law forum with a reason that ICJ’s view was just orbiter dictum in the Barcelona Traction case. Later stage of the ICJ, the erga omnes has not well settled in the International Law. Since the ICJ muddled the rights erga omnes with obligations erga omnes in the East Timor case and Israeli Wall case. After the year 2000, the ICJ came to recognized and admitted actio popularis properly. In the Armed Activities on the Territory of the Congo case, even in his Separate opinion, Judge Bruno Simma viewed the ILC Draft on State Responsibility, Article 48 could be a legal basis of actio popularis. And nextly in the Obligation to Prosecute or Extradite case, ICJ’s majority opinion decided that a violation of the Convention against Torture could be a violation of the obligations erga omnes against a international community, so that a State party of the Convention can claim cessation of the wrongful act. It can be a recognized as actio popularis.

참고자료

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