CYIL vol. 12 (2021)

CYIL 12 (2021) The Connally Reservation (Self-judging Reservation) to Declaration … I am afraid however that the specifics (object and purpose of the treaty in question), wording of the reservation in question and left out issues, make it uneasy to rely on it. Trinidad and Tobago indeed tried to exclude matters that would lead to conclusions of the Court “[in] consistent with the relevant sections of the Constitution of the Republic of Trinidad and Tobago; and provided that Judgment of the Court does not infringe, create or abolish any existing rights or duties of any private citizen .” 28 But it did not include the self-judging part. While it is true that the IACtHR treated the reservation as self-judging, 29 it did not properly answer why and whether the good faith review would apply. It did not even consider the non-separability of the declaration and reservation. Thus, the IACtHR’s conclusion that the reservation did not exclude its jurisdiction due to incompliance with the object and purpose of the treaty does not in fact address some of the most problematic issues. Consequently, the above-stated arguments are quite convincing that the Connally clause is in violation of the kompentenz-kompetenz principle. Nonetheless, the ICJ has never stated so explicitly and so the following chapter presents an alternative argument. 4.1 Consent not given In my view, even if the Connally clauses were found to be in compliance with the Statute, they would still deprive the declaration of accepting jurisdiction of the ICJ under Article 36(2) of the Statute of its legal effects. I stress however that this applies to the optional clauses only. When a state is a party to an international treaty that includes a compromissory clause with self-judging exclusion of a certain subject-matter, the conclusions might significantly differ because there is a binding legal source reflecting consent of the parties. Unlike in case of a null unilateral act where the consent is not reflected in a binding instrument. The theory is as follows: the declaration of accepting jurisdiction of the ICJ under Article 36(2) is a voluntary act of a State Party that is supposed to create a legal obligation (and is thus supposed to be binding until withdrawn) to respect the jurisdiction of the Court once another declaring state wishes to settle a dispute with it and lodges an application. The legal obligation in question is owed to any other declaring state and creates a legal relationship between the states in question which is regulated by the Statute of the ICJ. The other state (applicant in the theoretical proceedings) in fact steps into the relationship and turns it into bilateral relationship once it transmits an application. States are of course entitled to restrict the scope of the accepted jurisdiction and then the Court only maintains jurisdiction in the remaining scope. But it is only possible so long as the reservation does not deprive the declaration itself of its binding status. Because otherwise, there is no point for the declaration to exist; it would not create an obligation to accept the jurisdiction upon another state’s application transmission. But that is exactly what the Connally clauses do. So to turn from theory to practical issues – to say that the declaring state (even after an application claiming it violated international law was transmitted) is the one to decide in 28 IACtHR, Hilaire v. Trinidad and Tobago , preliminary objections, judgment of 1 September 2001, Series C No. 80, para. 43. 29 IACtHR, Hilaire v. Trinidad and Tobago , preliminary objections, judgment of 1 September 2001, Series C No. 80, paras. 88 and 92. 4. The effects of using the Connally clauses – nullity of the declaration of acceptance


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