CYIL vol. 12 (2021)
Milan lipovský CYIL 12 (2021) faith (which would be for the Court to decide), there would be no such determination and the ICJ would have jurisdiction. While I admit that this argument seemingly solves the issue of non/compliance with Article 36(6) of the Statute, I still see a major problem in compulsory jurisdiction. As elaborated above, a declaration of acceptance of the Court’s compulsory jurisdiction and the reservations to it must be understood as inseparable legal instruments if the declaration would not have been done without the reservation. At the same time, if there was no legal act (as the reservation nullified it), it is not possible to attach good faith to its use. So, should the Court find that the declaring state made the determination of a subject matter of a dispute to be of a domestic nature (and thus the Court should not be endowed with jurisdiction), it would not be possible to attach a good faith interpretation to the reservation because it would be (together with the declaration itself ) a non-existent act, a null act. Consequently, the theory of good faith leads to an impossibility in relation to the reservations. While it is true that the International Court of Justice applied the good faith test in Djibouti v. France 47 to a self-judging clause, the situation was different because it applied it to an existing legal act – an international treaty binding upon the parties who agreed on the self- judging clause in it and the self-judgment was not a part of a compromissory clause. Instead, the provision in question allowed France to refuse assistance in criminal proceedings when it considered it to prejudice its sovereignty and essential interests among others. 48 Clearly, that must be distinguished from the case of a non-existing legal obligation of accepting the compulsory jurisdiction of the ICJ unilaterally without the consent of the other party. It does not however necessarily mean that the good faith review is completely impossible to any self- judging clause. It just means that it is impossible to apply it to a reservation to the acceptance of compulsory jurisdiction. 7. Treaties containing self-judging clauses It has already been mentioned above but it is a topic worth of its own chapter (or rather a book). Connally clause containing reservations to declarations of accepting compulsory jurisdiction of the ICJ are not to be equated with any self-judging clause or even to other compromissory clauses contained in already existing international treaties, even if they establish jurisdiction of a judicial organ with self-judging clauses similar to the Connally reservation. The self-judging clauses are not that unusual as the above-discussed case of Djibouti v. France proved. Probably the most notable example is the General Agreement on Tariffs and Trade which contains for example the following provision: “ Nothing in this Agreement shall be construed […] to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests ” 49 47 ICJ, Certain Questions of Mutual Assistance in Criminal Matters ( Djibouti v. France ), judgment of 4 June 2008, I.C.J. Reports 2008, p. 177, para. 145. 48 ICJ, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France ), judgment of 4 June 2008, I.C.J. Reports 2008, p. 177, paras. 131-139. 49 Article XXI of the General Agreement on Tariffs and Trade (1947), Annex 1A to the Agreement Establishing the World Trade Organization, 33 ILM 1125 (1994), adopted 15 April 1994, entered into force 1 January 1995.
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