Recently, the International Court of Justice (ICJ) delivered an order declining the grant of provisional measures in Application of the Convention on the Prevention and Punishment of the Crime of Genocide in Sudan (Sudan v United Arab Emirates). By a majority of 14:2, the Court held it lacked prima facie jurisdiction over Sudan’s claims because of the United Arab Emirates’ (UAE) reservation to the compromissory clause in Article IX of the Genocide Convention (para 37.1). By a thinner majority of 9:7, the Court decided to remove the case from its General List (para 37.2), effectively closing the case.
The Court’s first finding has been widely perceived as ‘predictable’. However, this article analyses the second finding, examining the perspectives of the Judges on the possibility (or not) of removing a case from the Court’s General List—by testing whether it ‘manifestly’ lacks jurisdiction over the case. The article briefly surveys the views of the Judges regarding Sudan’s arguments on jurisdiction. Following this, the positions of the dissenting Judges on whether, and when, the Court may find it manifestly lacked jurisdiction, are analysed.
Sudan’s Arguments
Article IX of the Genocide Convention provided that disputes regarding its ‘interpretation, application or fulfilment…shall’ be submitted to the ICJ. This is, under its text, ‘including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III’. Importantly, the UAE made a reservation to the Convention (order, para 21):
…with respect to article 9 thereof concerning the submission of disputes arising between the Contracting Parties relating to the interpretation, application or fulfilment of this Convention, to the International Court of Justice, at the request of any of the parties to the dispute.
Thus, the UAE argued that the Court could not hear the present dispute. In a similar vein, the Court had upheld and given effect to reservations by other States to the same Convention in the past (paras 26-27).
Sudan’s submissions were two-fold. First, the reservation could be interpreted as allowing the Court’s jurisdiction over State responsibility disputes because it was ‘vague and non-specific’ (para 24). In the Bosnian Genocide judgment (2007), the Court focused on the phrase ‘including…the responsibility of a State’ under Article IX as an ‘unusual feature’ in a dispute settlement provision (para 168). As per Sudan, the UAE should have specifically reserved against this phrasing if it was the UAE’s intention to exclude State responsibility disputes (order, para 24).
However, upholding this submission could have had wide-ranging ramifications. According to the International Law Commission’s (ILC) Guide to Practice on Reservations to Treaties (2011) (4.2.6):
A reservation is to be interpreted in good faith, taking into account the intention of its author as reflected primarily in the text of the reservation, as well as the object and purpose of the treaty and the circumstances in which the reservation was formulated.
Interpreted in good faith, the terms of the UAE’s reservation are categorical in meaning and reflect the UAE’s intention to exclude any dispute concerning the ‘interpretation, application or fulfilment’ of the Convention. Contrary to Sudan’s argument, the Bosnian Genocide judgment shows that for the ICJ, the express reference to State responsibility in Article IX ‘tends to confirm’ (para 169), rather than create, its jurisdiction over disputes regarding State responsibility. As a corollary, a State need not reserve against State responsibility disputes in express terms, if it reserved against cases concerning the ‘interpretation, application or fulfilment’ of the Convention. The Court, by a 14:2 majority (Judge Yusuf and Judge ad hoc Simma dissenting), found that the reservation was ‘formulated in clear terms’ in this respect (para 29). Had it accepted this submission, the Court would potentially have compelled any State to judicial settlement, unrealistically, for its inability to anticipate in exhaustive terms every possible kind of dispute it may be part of in the future.
Sudan also challenged the validity of the UAE’s reservation (para 25). For Sudan, the Court played a ‘pivotal role’ in the implementation of the Convention as under Article IX, making the UAE’s reservation contrary to the object and purpose of the Convention, which was to safeguard the existence of protected groups. The Court did not accept this argument, while recalling four cases where it had already given effect to reservations to Article IX made by different States (para 31), including in DRC v Rwanda (2006), where it controversially affirmed a distinction between substantive obligations of the Convention and its compromissory clause, only the former of which implicated the object and purpose of the Convention.
Concluding that it lacked prima facie jurisdiction, the Court observed that it ‘manifestly lacked jurisdiction’ over Sudan’s claims (paras 35-36). By a vote of 9:7, the Court then ordered the removal of the present case from the General List (Judges Bhandari, Charlesworth, Gómez Robledo, Cleveland, Tladi, Judge ad hoc Simma, and Judge Yusuf dissenting).
While five Judges, namely Judges Bhandari, Charlesworth, Gómez Robledo, Cleveland, and Tladi agreed with the first finding (that the Court lacked prima facie jurisdiction), they dissented on the removal of the case from the General List. Together with Judge ad hoc Simma, they authored a joint partly dissenting opinion of six Judges. Judge Yusuf, Judge Gómez Robledo, and Judge ad hoc Simma provided individual opinions. The perspectives of these Judges are analysed below.
Can the Court Remove Cases from its General List?
There are two questions deserving consideration as to the second finding by the Court’s majority. Firstly, does the Court have the power to order the removal of a case from its General List, i.e., to ‘summarily dismiss’ a case at the provisional measures stage, on the basis that the Court manifestly lacks jurisdiction? Secondly, if yes, then under what conditions?
Judge Yusuf (with whom Judge ad hoc Simma agreed) surveyed the Statute and Rules of the Court, concluding that there was no provision permitting the Court to order the removal of a case from its General List. Not just that, having denied Sudan an opportunity to fully submit its case on jurisdiction ‘flies in the face of both Article 36, paragraph 6, of the Statute and Articles 79, 79bis and 79ter of the Rules of Court’ (para 20). To Judge Yusuf, the concept of ‘manifest lack of jurisdiction’ is a ‘fictitious notion’ that goes against the usual procedure contemplated in these provisions (para 10).
Judge Yusuf suggests that the Court required a positive legal basis to order the removal of a case from its General List. However, it can be argued that the Court has the ‘inherent power’ to order such removal under appropriate circumstances (on this, see Judge Higgins at paras 12-13, as highlighted also by McIntyre). An analogy may be made to the Nuclear Tests cases (1974), where the Court, on its own motion, discontinued proceedings regarding France’s nuclear testing after France declared it had terminated the testing, with the Court concluding that the object of the applicants’ claims were satisfied. As a policy matter, compelling States to litigate a case with an inevitable finding against jurisdiction would squander the resources and time of the parties the Court (as alluded to by the majority at para 35).
The joint partial dissent warns that the Court ‘effectively punishes’ a party for seeking provisional measures (para 2). It is suggested that if not for Sudan’s application seeking provisional measures (where the Court has to determine prima facie jurisdiction), the Court would necessarily have had to proceed to the jurisdiction stage. This begs the question—could the Court not, on its own motion, remove a case from its General List if the conditions were right to do so? If we accept the aforementioned premise that the ‘manifest lack of jurisdiction’ test draws from a Court’s inherent powers, then the Court should be able to order the removal of a case from its General List without provisional measures proceedings. However, this power must be exercised with clearly defined parameters. The real issue, then, is not whether, but under what conditions the Court may order the removal of a case from its General List, balancing the interests of the parties.
Clarifying ‘Manifest Lack of Jurisdiction’
As Judge ad hoc Simma observes, the majority did not provide any conception of what it meant by ‘manifest lack of jurisdiction’—rather, it seemed to conflate this concept with ‘prima facie lack of jurisdiction’ (para 10). The joint partial dissent takes issue with this conflation, suggesting that proving the ‘manifest lack of jurisdiction’ is a higher threshold for a respondent State than ‘prima facie lack of jurisdiction’, in line with literature. The joint partial dissent highlights (para 17) that there have been only two cases in the past where the Court ordered removal from the General List, i.e., in Yugoslavia’s proceedings against Spain and the United States in the Legality of the Use of Force cases (1999). However: in those cases, the Court noted that Yugoslavia ‘submitted no argument concerning’ the reservations (para 31 and para 23). By contrast, in DRC v Rwanda, the Court found it lacked prima facie jurisdiction at the provisional measures stage (2002) owing to the respondent’s reservation to Article IX, but nevertheless proceeded to give judgment at the jurisdiction stage (2006) as the applicant made some arguments on jurisdiction.
By contrast from the Legality of the Use of Force cases, Sudan indeed made some arguments: firstly, that the UAE’s reservation was potentially ambiguous, and secondly, that the reservation was invalid (para 14). Despite finding it lacked prima facie jurisdiction for the specific purpose of issuing provisional measures, the Court ought to have continued with formal hearings on jurisdiction on the case, allowing both parties to provide pleadings in full—as opposed to definitively closing the case after giving either party only ‘two hours’ of oral submissions (paras 3 and 15).
Thus, for the joint partial dissent, the concept of a ‘manifest lack of jurisdiction’ only (or mainly) concerns a situation where the applicant makes no arguments in support of jurisdiction. This, however, is a rather low threshold—under this standard, it is conceivable to imagine a future claimant State presenting some argument in favour of jurisdiction, whether or not plausible, as a mere formality (including ‘demonstrably rubbish’ arguments couched in international legal language). Thus, admitting an implausible argument may render the test moot. At the same time, as the joint partial dissent emphatically noted, the ability of the Court to summarily dismiss a case puts at risk the claimant’s ‘right to be heard’ (para 27), which, ultimately, relates to sovereign equality in dispute settlement. The question continues to persist—how should the ‘manifest lack of jurisdiction’ concept threshold be defined and refined in the future?
Looking Ahead
The Judges made some interesting observations on issues they wished to consider more fully at the jurisdiction stage. The joint partial dissent alluded (paras 10, 26) to the possibility of the Court reconsidering its brief observation in DRC v Rwanda (2006) distinguishing between substantive obligations and compromissory clauses. Judge Gómez Robledo (para 10) argued that the rise of litigations under the Convention highlighted the recently recognised significance of the Court as a means of dispute settlement—raising questions about the validity of a reservation against a compromissory clause in light of evolving practice. The inability of the Court to comment on these issues was a ‘missed opportunity’.
25 years since the Legality of the Use of Force cases, the Sudan v UAE proceedings offered an opportunity for the Court to have further clarified its conception of the ‘manifest lack of jurisdiction’ test, providing predictability and clarity in dispute settlement to States. While ultimately, the Court’s finding in declining provisional measures is unsurprising, it could have better contributed to its jurisprudence on removing cases from the General List, especially as its decision on this matter was only by a close vote of 9:7.
Abhijeet Shrivastava is a public international lawyer and researcher, with an LLM from Cambridge University and BA, LLB(Hons) from Jindal Global University.