CYIL vol. 12 (2021)
Milan lipovský CYIL 12 (2021) may raise a preliminary objection to the jurisdiction. Such an objection relates to “ conditions affecting the parties’ consent to have the tribunal decide the case at all. If successful [they] stop all proceedings in the case, since they deprive the tribunal of the authority to give rulings as to the admissibility or substance of the claim. ” 1 That must be kept in mind because it indicates the difference between the matters of jurisdiction and admissibility of a claim. The court/tribunal is prohibited from continuing with anything, including issues of admissibility, unless it has established its jurisdiction. To be clear, even admissibility and merits in front of the ICJ are very complicated and subjected to issues that domestic jurisdiction does not usually deal with. 2 However, this article leaves them aside. In order for a dispute to be adjudicated by the ICJ, the parties to the dispute in contentious proceedings, that can only be states under Article 34(1) of the Statute of the ICJ (the Statute), 3 must first become parties to the Statute and then accept the Court’s jurisdiction. There are several recognized tools of how a state may exercise consent to the contentious jurisdiction of the ICJ: for example: a) by entering into a special treaty (compromis) under Article 36(1) of the Statute, b) declaration under the optional clause in Article 36(2) of the Statute, c) a compromissory clause in an international treaty, or d) by voluntary appearance. This article focuses on issue relevant to the consent to the ICJ’s jurisdiction under Article 36(2) of the Statute and the specific reservations that states used with it. The so-called Connally reservation has raised questions ever since it was used for the first time by the United States of America and this article is dedicated to discussing the problematic issues, presenting the attitude of the ICJ towards the reservation and attempts to make a conclusion that would reflect on viability of the reservation today. The particular problem of the reservation is its self-judging part. Self-judging clauses are typically “ provisions in international legal instruments by means of which states retain their right to escape or derogate from an international obligation based on unilateral considerations and based on their subjective appreciation of whether to make use of and invoke the clause vis-à-vis other states or international organizations .” 4 The Connally clauses is a specific type of these clauses. It is a unilateral act, by which a state accepting the jurisdiction of the ICJ under Article 36(2) of the Statute excludes certain topics from the acceptance of the Court’s jurisdiction. They are not however an international treaty as is clear below and it has particular legal consequences. 2. ICJ and the Connally Clauses/Reservations Since the consent of a state must fulfil all conditions to be a valid act of international law, states can easily avoid the jurisdiction of the ICJ in contentious proceedings by simply not accepting it or restricting it. While it is possible to limit the consent considerably (simply because if they are allowed to give it (as well as to refuse completely), there is no reason to 1 CRAWFORD, James. Brownlie’s Principles of Public International Law . 8 th edition, Oxford: Oxford University Press, 2012, p. 693. 2 For example, existence of a dispute was the subject of article: LIPOVSKÝ, Milan. Existence of a Dispute in front of the ICJ, in: Czech Yearbook of Public & Private International Law , vol. 8, 2017. 3 Statute of the International Court of Justice, 15 UNCIO 355, adopted 26 June 1945, entered into force 24 October 1945. 4 SCHILL, Stephan, BRIESE, Robyn. “If the State Considers”: Self-Judging Clauses in International Dispute Settlement, in: Max Planck Yearbook of United Nations Law , vol. 13, 2009, p. 68.
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