CYIL vol. 12 (2021)
CYIL 12 (2021) The Connally Reservation (Self-judging Reservation) to Declaration … of acceptance remained valid. If this was possible, the above-described problems would be avoided. International law is not oblivious to the legal instrument of separating a part of a legal act, depriving it of legal effects and keeping the rest of it in effect. The Vienna Convention on the Law of Treaties (1969) 35 relies on this principle in its Articles 44 and 60. Though judge Lauterpacht obviously did not know the future final text of the Vienna Convention, he had already envisaged a principle that would be included in it. Nonetheless, he stated that “[i] f that reservation is an essential condition of the Acceptance in the sense that without it the declaring State would have been wholly unwilling to undertake the principal obligation, then it is not open to the Court to disregard that reservation and at the same time to hold the accepting State bound by the Declaration. ” 36 He builds that upon what he understands to be a general principle of law, i.e., that no one can “ be bound by an obligation divested of a condition without which that obligation would never have been undertaken ” 37 by that actor. The Norwegian Loans case’s judgment does not come to the same conclusion but is neither contrary to it. The Court refused to discuss compliance of the Connally clause with Article 36(6) of the Statute and solely relied on reciprocity declared by both states (Norway and France). It might however be said that the Court therefore also relied on the will of the states in question to avoid the Court’s jurisdiction. In Interhandel , judge Armand-Ugon disagreedwith judge Lauterpacht on the inseparability and claimed that even the US did not see the declaration and reservation as inseparable in their views. He also claimed that they could have been separated because the reservation was not an aspect without which the US wouldn’t accept the Court’s jurisdiction because they also appeared in front of the Court in cases both as applicant and respondent. 38 I tend to agree with judge Lauterpacht because unlike judge Armand-Ugon, he does not relate the relationship between the declaration and reservation to individual cases (where the parties’ opinions vary as much as it is convenient for them at that very moment) but to the overall picture as it was intended in 1946 when the US declared the acceptance and reservation. The inseparability of the declaration under Article 36(2) of the Statute from the reservations adopted with it is also clear from the approach to interpreting their text as the ICJ stated that “[t] he Court will thus interpret the relevant words of a declaration including a reservation contained therein in a natural and reasonable way, having due regard to the intention of the State concerned at the time when it accepted the compulsory jurisdiction of the Court .” 39 The declaration and the reservation need to be interpreted as a single unit, otherwise they would not reflect the will of the state. 35 Vienna Convention on the Law of Treaties, 1155 UNTS 331, adopted 22 May 1969, entered into force 27 January 1980. 36 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. 115. 37 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. 114–115. 38 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, pp. 91–92. 39 ICJ, Fisheries Jurisdiction ( Spain v. Canada ), jurisdiction of the Court, judgment of 4 December 1998, I.C.J. Reports 1998, p. 432, para. 49. The inseparability and consequent nullity of declaration (in case of invalidity of the reservation) is further elaborated upon by President Schwebel in his separate opinion to the very same judgment, particularly in para. 7.
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