CYIL vol. 12 (2021)
Milan lipovský CYIL 12 (2021) “In regard to any legal dispute that may in future arise between the United States of Mexico and any other State out of events subsequent to the date of this Declaration, the Mexican Government recognizes as compulsory ipso facto, and without any special agreement being required therefore, the jurisdiction of the International Court of Justice in accordance with Article 36, paragraph 2, of the Statute of the said Court, in relation to any other State accepting the same obligation, that is, on condition of strict reciprocity. This Declaration, which does not apply to disputes arising from matters that, in the opinion of the Mexican Government, are within the domestic jurisdiction of the United States of Mexico, shall be binding for a period of five years as from 1 March 1947 and after that date shall continue in force until six months after the Mexican Government gives notice of denunciation.” [emphasis added] 10 The above-quoted Mexican reservation present in the second sentence only lacks the word “essentially/exclusively”, otherwise it is a complete example of Connally clauses. Other states that maintain this type of reservation include Malawi, 11 the Philippines, 12 and Sudan. 13 Previously, even other states used the Connally reservations but withdrew them. 14 There are other states that use similar reservations, but they lack the most problematic self-judging part (as considered by the declaring government). As seen further, those are not the issue here. If applied by any party to a dispute, the Connally reservation plays a crucial role in preliminary stages of the proceedings in front of the ICJ. As noted above, the matter of their validity (as well as validity of the entire declaration) should even precede the decision making on admissibility as judge Lauterpacht correctly mentioned. 15 Because they limit the very consent of the State to the jurisdiction of the Court, they must always be the first thing the Court has to evaluate because if the dispute topic/subject matter of the dispute is within the scope excluded by the state from the ICJ’s jurisdiction, it may not continue with any other judicial act. The ICJ only dealt with the Connally clauses in detail in two cases, the Norwegian Loans and Interhandel. None of the judgments is satisfactory and answers all the relevant question. In fact, the Court added some confusion to the debate. The fact that the majority’s opinions are troublesome is also evidenced by the amount and scope of dissenting and separate opinions. As stated above, the matters of jurisdiction are essential for the ICJ to act and thus the Court must establish its competence as a first thing. It should not deal with admissibility, the less with merits, until its jurisdiction is confirmed. That is why it is unfortunate that in 10 Declaration recognizing the jurisdiction of the Court as compulsory by Mexico of 28 October 1947, available online at URL https://www.icj-cij.org/en/declarations/mx. 11 Declaration recognizing the jurisdiction of the Court as compulsory by Malawi of 12 December 1966, available online at URL https://www.icj-cij.org/en/declarations/mw. 12 Declaration recognizing the jurisdiction of the Court as compulsory by the Philippines of 18 January 1972, available online at URL https://www.icj-cij.org/en/declarations/ph. 13 Declaration recognizing the jurisdiction of the Court as compulsory by Sudan of 2 January 1958, available online at URL https://www.icj-cij.org/en/declarations/sd. 14 CRAWFORD, James. The Legal Effect of Automatic Reservations to the Jurisdiction of the International Court, in: British Yearbook of International Law , vol. 50, issue 1, 1979, p. 63, footnote 2. 15 ICJ, Interhandel Case ( Switzerland v. USA ), preliminary objections, judgment of 21 March 1959, I.C.J. Reports 1959, p. 6, dissenting opinion of judge Sir Hersch Lauterpacht, p. 96.
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