CYIL vol. 12 (2021)
CYIL 12 (2021) The Connally Reservation (Self-judging Reservation) to Declaration … Norwegian Loans , 16 the Court decided to join preliminary objections (one of which dealt with the Connally clause) with merits 17 and in the Interhandel case, 18 it relied on inadmissibility issue (non-exhaustion of domestic remedies) contained in the third US objection when the first two and fourth objections all dealt with the scope of consent to the jurisdiction (first two with temporal, fourth with the Connally clause). The Court also missed an opportunity to express its opinion as to the need of the Connally clauses at all. According to Article 36(2) of the Statute, the Court may only settle disputes that concern matters of international law. 19 Some States still use reservations to declarations accepting compulsory jurisdiction that are close to the Connally clauses but lack the as considered by the declarant government/State part. Considering the text of Article 36(2), those reservations (missing the self-judgment phrase) might be considered as obsolete because their effects only confirm the very point that the ICJ will not deal with matters that are of no concern to international law 20 (stemming from Article 36(2) in this case). This very point was raised by Norway in Norwegian Loans as the first objection to jurisdiction and the ICJ refused to deal with it. 21 Thus, the reservations excluding the self-judging part must be treated differently from the classical Connally clauses and the following text does not apply to them (those not including self-judgment). 3. Validity of the Connally Clauses In the Norwegian Loans case majority’s decision is of no help regarding the legality of the Connally clauses because the Court explicitly refused to express its opinion in it. Consequently, it is necessary to rely on separate and dissenting opinions, Interhandel and other sources. As judge Lauterpacht formulated it in Interhandel , there are two most significant arguments (with which I agree) that put the validity of the Connally clauses in question: a) that it is not in compliance with the Statute of the ICJ, and b) that it deprives the declaration of accepting the Court’s jurisdiction of binding effects. 22 He also added third argument (that this article deals with separately in the following chapter) and used them to claim that the US had not accepted jurisdiction of the ICJ at all. Because the arguments are well structured and follow 16 ICJ, Case of Certain Norwegian Loans ( France v. Norway ), judgment of 6 July 1957, I.C.J. Reports 1957, p. 9. 17 ICJ, Case of Certain Norwegian Loans ( France v. Norway ), judgment of 6 July 1957, I.C.J. Reports 1957, p. 17. 18 ICJ, Interhandel Case ( Switzerland v. USA ), preliminary objections, judgment of 21 March 1959, I.C.J. Reports 1959, p. 6. 19 As Art. 36(2) enumerates, the dispute must concern “a) the interpretation of a treaty; b) any question of international law; c) the existence of any fact which, if established, would constitute a breach of an international obligation; d) the nature or extent of the reparation to be made for the breach of an international obligation. ” 20 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. 637. 21 ICJ, Case of Certain Norwegian Loans ( France v. Norway ), judgment of 6 July 1957, I.C.J. Reports 1957, pp. 18, 19 and 20. 22 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. 99.
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