CYIL vol. 12 (2021)
CYIL 12 (2021) The Connally Reservation (Self-judging Reservation) to Declaration … It is of course not a provision establishing jurisdiction of a judicial body. But even if it was, as stated above, such a provision would have needed to be treated differently from unilateral reservations. The basic difference is that reservations under Article 36(2) of the Statute of the ICJ are only unilateral acts and as such do not reflect the consent of both parties to settle (even a potential) dispute. On the other hand, if states adopt and possibly ratify an international treaty containing a provision obliging them to accept jurisdiction of a judicial organ together with a self-judging clause, the parties to any potential dispute arising out of potential violation of the said treaty has already been established. And as it was stated, consent is the basis for any dispute settlement mechanism. The self-judging clauses in compromissory clauses are thus not invalidated in the same way as declarations of accepting compulsory jurisdiction of the ICJ (when a Connally clause is used) and the good faith review described above might be applicable to them because the Court may establish whether an existing legal act was carried out in good faith. Thus, the self-judging clause in a binding international treaty (i.e., at least a bilateral legal act) does not “ oust the jurisdiction of a dispute settlement body, but rather affect the applicable standard of review .” 50 8. Conclusions The Connally reservations have seen a retreat in their use over the last decades. However, there are still several states that maintain their use. The International Court of Justice has never explicitly rejected the validity of the reservation in its judgments and so with change on the international scene, states might return to it. Particularly the separate opinions of certain judges and authors of doctrine passionately argue against the validity of the Connally clause and warn against its effects (including author of this article). It is in violation of the kompetenz-kompetenz principle and even if considered valid, it nullifies the effects of the declaration of acceptance of the compulsory jurisdiction of the ICJ. None of the attempts to rectify these mistakes with the Statute of the ICJ seem plausible and thus it is advisable for states to retreat from using it completely.
50 SCHILL, Stephan, BRIESE, Robyn. “If the State Considers”: Self-Judging Clauses in International Dispute Settlement, in: Max Planck Yearbook of United Nations Law , vol. 13, 2009, p. 66.
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