‘절차의 남용’ 개념 고찰과 국제해양법재판소 기후변화 권고적 의견 사건에 대한 우려 검토

Abstract

In the actual judicial proceedings including the advisory opinion process, we may frequently face criticisms and concerns about the ‘abuse of process’ raised on certain cases. The pending advisory opinion proceeding before the International Tribunal for the Law of the Sea (‘ITLOS’) regarding climate change is the same. The United Nations Convention on the Law of the Sea (‘UNCLOS’) does not explicitly stipulate the advisory jurisdiction of the ITLOS over other than sea-bed matters. Instead, Article 138 of the Rules of the ITLOS stipulates that the tribunal can give an advisory opinion on a legal question if an international agreement related to the purposes of UNCLOS specifically provides for the request for an advisory opinion to the tribunal. In this respect, some authors have raised that making an agreement and establishing a body for the purpose of asking for an advisory opinion of the ITLOS pursuant to Article 138 of the Rules of the Tribunal may constitute an abuse of process. While it is quite common to observe claims and criticisms about such abuse, especially in cases where politically sensitive questions are at issue, the concept of the abuse of process itself has rarely been scrutinised in detail. Thus, the purpose of this article is to explore the concept of the abuse of process both theoretically and practically. Hence, this article first explores how to understand this concept by suggesting essential constituents. On the basis of such findings, next, this article examines the applicability of this concept to the pending climate change advisory proceeding and inspects some underlying uncertainties and difficulties. Then, lastly, this article assesses why such concerns have been raised over the current proceeding, and what role that the ITLOS should take in facing those controversial procedural questions.