CYIL vol. 12 (2021)
CYIL 12 (2021) The Connally Reservation (Self-judging Reservation) to Declaration … Consequently, if the subject matter of a certain dispute really remains within the domain of domestic jurisdiction only, states should not be afraid (assuming correct law-finding by the international judges) not to use the Connally clauses. It would only be necessary if their intention was political and not to avoid unnecessary disturbances of their domestic law. 5.2 Essentially As if the topic was not complicated enough already, the term essentially adds another aspect. We may either accept the position that once a legal relationship is regulated by international law, it is not solely within domestic jurisdiction (essentially or not), or another position suggested that “essentially” means that a matter (though regulated by international law) is so important for the state in question that it remains within its jurisdiction. 43 The latter opinion would only matter if the automatic reservations were found to be valid of course. One might understand that states consider certain areas of their activities so important that they refuse to accept the jurisdiction of any international judicial body to settle disputes concerning them. 44 But to describe those areas in a Connally reservation as essential to their domestic jurisdiction or their interests , in the time of the ever increasing influence of international law over domestic issues is in fact acting against the interests of the concerned states. If they want to avoid any chance of the ICJ establishing jurisdiction over certain areas of their interest, it is easier to explicitly state it in the reservation to the declaration of acceptance of the compulsory jurisdiction (if they decide to accept the ICJ’s jurisdiction like that). It would be naïve to think that states do not have skeletons in their closets 45 that they do not want any Court to deal with. To prevent it from doing so, an explicit reservation is more effective solution. Otherwise, the term essentially might cause significant disagreements as to what areas of international and domestic law are important enough to overweight each other. In multicultural world, that might be unsolvable problem. 6. Good faith review There was an elaborate argument raised in favour of validity of the Connally amendment and it is based on good faith of the declaring state. It basically means that the Court keeps its power to decide upon its jurisdiction as stipulated in Article 36(6) of the Statute because it decides whether it has or does not have jurisdiction, i.e., it decides whether the state in question made “ a reasonable determination in good faith […] that the matter is of domestic nature .” 46 Consequently, if the declaring state did not make such a determination in good 43 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. 37. 44 See for example the reservation to the jurisdiction of the ICJ by the UK excluding the compulsory jurisdiction over some matters concerning nuclear disarmament: Declaration recognizing the jurisdiction of the Court as compulsory by the United Kingdom of Great Britain and Northern Ireland of 22 February 2017, available online at URL https://www.icj-cij.org/en/declarations/gb. 45 A term used by Lamm Vanda when explaining reasons for trend of new and more complicated reservations appearing: VANDA, Lamm. Permissibility of Reservations to Optional Clause Declarations, in: (2009) 143 Studia Iuridica Auctoritate Universitatis Pecs Publicata 243, p. 249. 46 CRABB, John H. On Judging the Connally Amendment, in: 1962 Georgetown Law Journal , vol. 50, no. 3, p. 536.
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