CYIL vol. 12 (2021)
Milan lipovský CYIL 12 (2021) each other logically, this and the following chapter reflect the same structure and discuss them in light of later developments. As described above, the Connally clauses confer the power to decide whether the ICJ has jurisdiction or not upon the state in question and thus deprives the Court of its right. That is not compulsory, rather completely voluntary jurisdiction. However, the Statute of the International Court of Justice clearly states that “[i] n the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court .” 23 Nonetheless, the Connally clause has contrary effect because (assuming the reservation was considered valid) if “ there is a dispute between the Parties as to whether the Court has jurisdiction, the matter shall be settled by a decision of the [declaring] government, ” 24 not by the Court. Consequently, the Connally clauses are not only invalid due the incompliance with this particular provision of the Statute but also due to its violation of the kompetenz-kompetenz principle. To put it simply, by accepting the Court’s jurisdiction, the state accepts it together with the Statute and is thus only allowed to do what the Statute allows, otherwise the act of acceptance is not valid. Still though, it is only fair to mention the opinions in favour of the validity of Connally clauses (i.e., including the self-judging statement) as well. I refer to the chapter of this article dealing with the good faith review. That principle essentially means that it is the Court who decides whether the state in question made the reservation validly or not, and thus, the Court retains the power under Article 36(6) of the Statute. I disagree with it however for the reasons elaborated upon therein. For now, it suffices to say that there may be no good faith review of a non-existent/null legal act. One of the disadvantages of the Court not holding upon the validity of a Connally reservation is that the question of Court’s jurisdiction is not settled. Particularly in cases like Interhandel , where the Court decides the claim is inadmissible, instead of rejecting/ confirming its jurisdiction, it is open to the parties to reopen the case once the reason for inadmissibility is put aside. 25 It is not a very helpful reservation at all. In fact, due to the principle of reciprocity, even if it was considered valid (which I disagree with) it would run contrary to the interests of the declarant state in disputes where it would be the applicant because due to reciprocity imbedded into Article 36(2) of the Statute, the other party to the dispute might use it to evade the Court’s ruling (as it happened in Norwegian Loans ). Even though Tomuschat does not state that the reservation is invalid, he admits that it might only be useful in borderline situations. 26 Proponents of illegality of the Connally reservation tried to find a source in the case before the Inter-American Court of Human Rights (IACtHR) of Hilaire v. Trinidad and Tobago . 27 23 Statute of the ICJ, Art. 36(6). 24 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. 39. 25 ICJ, Interhandel Case ( Switzerland v. USA ), preliminary objections, judgment of 21 March 1959, I.C.J. Reports 1959, p. 6, dissenting opinion of judge Armand-Ugon, p. 89. 26 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. 638. 27 IACtHR, Hilaire v. Trinidad and Tobago , preliminary objections, judgment of 1 September 2001, Series C No. 80.
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