CYIL vol. 12 (2021)

Milan lipovský CYIL 12 (2021) every single case whether the subject-matter of the dispute is essentially within its domestic jurisdiction or not, this is the same as to say that I have an “ obligation to pay rent unless I write declaring my inability to pay [which would be] stretching language to describe me as under any obligation at all, at least if I were the sole judge of my own solvency .” 30 ICJ would only have jurisdiction unless the declarant state unilaterally decided it did not. And that is not a binding act. That simply creates no obligation for the declaring state and consequently other states have no guarantee that their potential disputes within the allowed limits would be settled as Article 36(2) stipulates. As the declaration of accepting the jurisdiction of the Court is intended to be a binding act upon the declaring state, the Connally clauses act as catch 22. Consequently, if the declaring state is entitled to deprive the declaration of its binding status on any occasion, it (the declaration) is not a binding act at all. And if it is not binding, it is as if it was never declared and the Connally clause is the reason. 31 So even if a Connally clause is not found to be an invalid act based on incompliance with Article 36(6) of the Statute, it plays a role of a consent-withdrawing legal instrument (not in the procedural sense however because the consent was never given). And because the declaration must obviously be a legal act conditioned by a valid consent, the declaration thus becomes a null act, as if it never existed. The Norwegian Loans judgment is reconcilable with this conclusion because there the Court refused to discuss legality of the Connally clause and simply stated that the will of both parties is to exclude the dispute from the Court’s jurisdiction. 32 One might argue that the fact that some states maintain their Connally reservations for decades despite the strong opinions against them, and additionally due to the fact that the ICJ has not refused their validity in a majority decision, is a proof of their effects and weakness of counter-arguments. Judge Schwebel hinted so in his dissenting opinion 33 and James Crawford elaborated upon the idea when discussing whether the reservations might be in compliance with object and purpose of the optional clause. 34 I would counter that the passage of time may not rebut the invalidity of the reservation exactly, because the ICJ has avoided to answer it explicitly and at the same time the question of whether it was obliged to deal with the topic was not properly addressed either. And additionally, several states The obvious solution to evade the troubles caused by the Connally clauses (particularly its as considered by the declaring government part) is to consider the problematic part (and only the problematic part!) as invalid while the remainder of the reservation and the declaration 30 As James Crawford put the analogy when discussing judge Lauterpacht’s arguments in 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. 74. 31 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, pp. 104–105. 32 ICJ, Case of Certain Norwegian Loans ( France v. Norway ), judgment of 6 July 1957, I.C.J. Reports 1957, p. 27. 33 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, dissenting opinion of Judge Schwebel, paras. 64–66. 34 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, pp. 80–82. retreated from using the reservations, including the United States. 4.2 In-separability of the declaration and the reservation

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