CYIL vol. 12 (2021)
CYIL 12 (2021) The Connally Reservation (Self-judging Reservation) to Declaration … restrict them in the scope of topics they subject to the possibility of settlement), 5 some of the adopted restrictions have been found to be troublesome. Particularly, the so-called optional clauses under Article 36(2) of the Statute allowing states to oblige themselves unilaterally to accept jurisdiction of the Court (compulsory jurisdiction) in relation to any other states issuing the same optional clause (i.e., under condition of reciprocity), has brought up questions regarding the limits of how a state may restrict the Court’s future jurisdiction. This unilateral obligation of the declaring state to accept to Court’s jurisdiction might be imagined as a pactum de contrahendo with a theoretical other party (the content being an obligation to accept the Court’s jurisdiction) that becomes bilateral in concreto once an application is lodged by another state. 6 Until it becomes bilateral, it is however more a network of unilateral obligations. As stated however, the jurisdiction might be limited and the technical tools of doing so are reservations to the declarations of accepting the jurisdiction. There are many kinds of them, and this article focuses on one – the Connally reservation/clause. The Connally reservations/clauses/amendments 7 (also called automatic reservations 8 or self-judging reservations) are an example of the controversial forms of the reservations to the declarations under Article 36(2) of the Statute. They are one of the forms of so-called self-judging clauses that are present in various international treaties as well as in reservations to obligations of states, such as to the compulsory jurisdiction. As will be seen in chapter on self-judging clauses in international treaties, the Connally clause must be treated specifically. The Connally clauses have been adopted by States together with declarations recognizing the jurisdiction of the ICJ as compulsory ipso facto under Article 36(2) Statute and basically exclude matters considered by the declarant State essentially/exclusively within its domestic jurisdiction/interests . Such a reservation was first adopted by the USA in 1946 9 and despite decline in their use in last few decades, there are still several states that use them. An example is in the Mexican declaration as follows: 5 Some restrictions are explicitly mentioned in Art. 36(3) of the Statute but it is not an exhaustive list – ICJ, Aerial Incident of 10 August 1999 ( Pakistan v. India ), jurisdiction of the Court, judgment of 21 June 2000, I.C.J. Reports 2000, p. 12, para. 37. The ICJ explicitly confirmed free will of states to make those declarations, as well as their free choice to make reservations to them in ICJ, Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. USA ), jurisdiction and admissibility, judgment of 26 November 1984, I.C.J. Reports 1984, p. 392, para. 59. 6 There are opinions claiming that it already resembles a multilateral treaty but even some authors claiming it accept that the system just resembles it and the system “ is not placed under the proposition pacta sunt servanda or declaratio est servanda.” TOMUSCHAT, Christian. Article 36, in: ZIMMERMANN, Andreas, TOMUSCHAT, Christian, OELLERS-FRAHM, Karin (eds.). The Statute of the International Court of Justice. A Commentary . Oxford: Oxford University Press, 2006, p. 627. 7 Called after the US senator Connally – CRABB, John H. On Judging the Connally Amendment, in: 1962 Georgetown Law Journal , vol. 50, no. 3, p. 544. 8 Because once invoked by a state, the court must allegedly automatically assume being without jurisdiction: ICJ, Interhandel Case ( Switzerland v. USA ), preliminary objections, judgment of 21 March 1959, I.C.J. Reports 1959, p. 6, dissenting opinion of Sir Hersch Lauterpacht, p. 101; similarly see ICJ, Case of Certain Norwegian Loans ( France v. Norway ), judgment of 6 July 1957, I.C.J. Reports 1957, p. 9, separate opinion of judge Sir Hersch Lauterpacht, p. 29. 9 ALEXANDROV, Stanimir A. Accepting the Compulsory Jurisdiction of the International Court of Justice with Reservations: An Overview of Practice with a Focus on Recent Trends and Cases, in: (2001) Leiden Journal of International Law , vol. 14, p. 113.
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