CYIL vol. 12 (2021)

Milan lipovský CYIL 12 (2021) One can hardly imagine that a state using a Connally clause would be willing to accept compulsory jurisdiction of the ICJ without restricting it the way the clause intended to. They would unlikely be willing to get rid of only the problematic part of the clause either. Consequently, applying the above-stated, the Court should consider itself to be deprived of the jurisdiction completely because the reservation nullifies the declaration. Thus, it seems logical that the only correct conclusion is that the Connally clauses (if considered valid) have the effect of nullifying the declaration of acceptance of the compulsory jurisdiction. It should also be kept in mind that even if a party to a dispute before the ICJ uses a Connally clause and thus deprives the Court of its jurisdiction, but then appears before the Court, it is not necessarily a proof of the Connally clause being accepted as valid and not nullifying the declaration. The jurisdiction of the ICJ may be exercised on other grounds than Article 36(2) grounds even in cases where the parties have issued the declaration of acceptance of compulsory jurisdiction. 40 5. Meaning of essentially domestic issues as understood by the state / government in question For the sake of clarity however, it must also be considered, how the Connally clauses would act if they were not only considered legal but also not nullifying the declaration of It might be suggested (and there were such suggestions) that a subject matter of a dispute is excluded from the Court’s jurisdiction simply because domestic law regulates it and matter of domestic jurisdiction (as the phrase is most often used) are excluded from the Court’s jurisdiction. That would however go against the very purpose of dispute settlement. It is not a reason to exclude a legal relationship from the sphere of international law solely because it is regulated by domestic law. 41 Contrarily, the proper test to be used is whether international law applies to the legal relationship or not. To put it differently, whether international law might be violated by the content of such relationship. Indeed, there are areas of domestic law that are not regulated by international law at all. But with the development of international law, particularly with human rights development, they are less numerous. The rationale behind the Connally clauses are however not entirely out of question. As the International Court of Justice relies on sources of international law to settle disputes between states, it may not apply domestic law. As such, the argument that the subject matter of a certain dispute is not regulated by international law, may be used as an argument in the meritory phase. 42 If successful, the ICJ would have to decide (after successfully establishing that it had jurisdiction) that international law was not violated. In order to be able to use this argument in merits, there is no need for a reservation to a declaration accepting the jurisdiction of the Court or any other instrument restricting it. 40 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, pp. 59–60. 41 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. 32. 42 CRAWFORD, James. Brownlie’s Principles of Public International Law . 8 th edition, Oxford: Oxford University Press, 2012, pp. 728–729. acceptance. However strange such idea seems to me. 5.1 The sphere of domestic vs. international law


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