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Sarthak Sahoo<\/strong><\/p>\n On 5 May 2025, the International Court of Justice (\u2018Court\u2019) delivered its order on provisional measures in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in Sudan (Sudan v. United Arab Emirates)<\/em><\/a> (\u2018Genocide<\/em>\u2019). For context, the Repbulic of Sudan had instituted proceedings \u2013 including the request for indicating provisional measures \u2013 against the United Arab Emirates as it considered<\/a> the latter responsible for genocide against the Masalit people via the Rapid Support Forces, a party to the civil war in Sudan.<\/p>\n However, the merits have attracted little discussion about this. It is, instead, the claims of jurisdiction that have obtained importance. Whereas both the States are parties to the 1951 Genocide Convention<\/a>, the UAE had expressed a reservation to Article IX, which is the treaty\u2019s compromissory clause. The reservation read<\/a> as follows:<\/p>\n \u2018the Government of the United Arab Emirates . . . makes a reservation with respect to article IX 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.\u2019<\/p>\n Naturally, this posed two problems for Sudan. First, it would have to demonstrate that the Court has prima facie <\/em>jurisdiction despite this reservation such that it is capable of indicating provisional measures. Second, it would have to eventually demonstrate that the Court has jurisdiction per se, such as to decide its claims on the merits. Both problems address the same legal questions, but differ on the legal standard. The former would be a \u2018lower\u2019 threshold, easier for Sudan to meet than the latter.<\/p>\n At the oral hearings of the provisional measures stage, Sudan addressed the Court on why it had prima facie <\/em>jurisdiction. First, it argued that the UAE\u2019s reservation in particular was phrased ambiguously, and could potentially be constructing as eventually affording jurisdiction to the Court. See\u00a0<\/em>Verbatim Record 2025\/1<\/a>\u00a0(pg 29 et seq). This ambiguity (and not the construction Sudan necessarily prefers) alone would be sufficient to state that prima facie <\/em>jurisdiction existed.<\/p>\n Second, and as an alternative, it argued that the reservation was incompatible with the object and purpose of the Convention. See\u00a0<\/em>Verbatim Record 2025\/1<\/a>\u00a0(pg 34 et seq).This second argument is especially interesting, as the Court has given effect to Article IX reservations in multiple cases. See <\/em>Legality of Use of Force<\/a> (paras 32-33). It also has also declared them compatible with the object and purposes of the Convention. See <\/em>Armed Activities<\/a> (paras 67-70).<\/p>\n Naturally, UAE, on its own part, invoked these cases to argue that reservations to Article IX are permissible. It also argued the construction was not ambiguous at all. However, then, the UAE turned to argue that the Court should not<\/em> end at merely not<\/em> indicating provisional measures; but instead, should remove the case from its General List altogether at this stage. See\u00a0<\/em>Verbatim Record 2025\/2<\/a>\u00a0(pg 29 et seq).<\/p>\n This argument emerges from the practice of the Court<\/a> to remove cases from the General List at the provisional measures stage if there is a \u2018manifest lack of jurisdiction\u2019. In other words, this is a threshold lower than the \u2018jurisdiction\u2019 and \u2018prima facie<\/em> jurisdiction\u2019 questions. When the Court concludes that, at the provisional measures stage, there is a manifest lack of jurisdiction, it refuses to hold separate hearings on jurisdiction and admissibility; thus, implying that the grounds for jurisdiction claimed are so implausible that no benefit would come of such hearings. The case is removed from the General List.<\/p>\n In its order<\/a>, the Court addressed both the \u2018prima facie<\/em> jurisdiction\u2019 and \u2018manifest lack of jurisdiction\u2019 questions. On the former, it holds fourteen (14) to two (2) that the Court did not have such jurisdiction, and could not indicate provisional measures. It found that the UAE\u2019s reservation is not ambiguous insofar as its answerability to Court is concerned. It also reaffirmed the fact that various cases had affirmed the validity of Article IX reservations to be valid. Judge Yusuf and Judge ad hoc <\/em>Simma dissented (more on this presently).<\/p>\n However, having found that no prima facie <\/em>jurisdiction existed, the Court then went on to say that it manifestly <\/em>lacked jurisdiction. It stated that, \u2018to maintain on the General List a case upon which it appears certain that the Court will not be able to adjudicate on the merits would not contribute to the sound administration of justice.\u2019 This was a far more contentious call, with nine (9) judges voting in favour to seven (7) against. Apart from the inclusion of Judge ad hoc<\/em> Simma, this included Judges Bhandari, Charlesworth, G\u00f3mez Robledo, Cleveland and Tladi.<\/p>\n As stated before, this has been the more uncontroversial attestation, simply holding that prima facie, <\/em>there is no jurisdiction to be found owing to the clear and valid UAE reservation. At this stage, the votes by Judge Yusuf and Judge ad hoc <\/em>Simma are radical insofar as they would effectively \u2018overrule\u2019 the long line of cases that have held that reservations to Article IX are permitted.<\/p>\n But a perusal of Judge Yusuf\u2019s dissent<\/a> paints a different picture. He does not address the question of why prima facie <\/em>jurisdiction does exist. Instead, he simply goes on to argue the Court\u2019s conflated a finding of prima facie<\/em> jurisdiction relevant for Article 41 and jurisdiction on the merits under Article 79 et seq when it dealt with the \u2018manifest lack of jurisdiction\u2019 plank. \u00a0See <\/em>Part II and III of the Opinion. This, as the reader can tell, is an argument about the second question, i.e., on the Court\u2019s finding on manifest lack. However, he does not explain his opposition to the Court that prima facie <\/em>jurisdiction. Thus, his vote on prima facie<\/em> jurisdiction remains unreasoned.<\/p>\n The only explanation for this may be found in Part IV of his Opinion, which refers to the Court\u2019s decision in the Armed Activities <\/em>decision. There, he flagged a separate opinion which underscored that a reservation to Article IX of the Genocide Convention could <\/em>be \u2018incompatible with the object and purpose\u2019; that such compatibility was not \u2018self-evident\u2019. The Judge states that this case \u2018was an excellent opportunity\u2019 to reconsider this. However, I hesitate to characterise this as an explanation for his vote, as it simply becomes a tool for him to speak to the unfairness of the Court not giving a separate hearing on the jurisdiction on merits (in other words, an argument against manifest lack of jurisdiction). See <\/em>Paragraph 19-20. He ultimately takes no position on why there is prima facie <\/em>jurisdiction.<\/p>\n Judge ad hoc <\/em>Simma, on the other hand, explains his vote on this question in his declaration<\/a>. He states, plain and simple, that a reservation to Article IX is incompatible with the purposes of the Genocide Convention. See <\/em>Paragraph 4. He argues this is so as the ICJ is the sole<\/em> forum capable of adjudicating upon a State\u2019s compliance with the Convention. See <\/em>Paragraph 2. He also notes of broader humanitarian trends in his behalf, including the many withdrawals of Article IX reservations, and recognition of doctrines like erga omnes partes. \u00a0See <\/em>Paragraph 6-7.<\/p>\n He, like Judge Yusuf, also flags the separate opinion in Armed Activities. <\/em>But most crucially, he takes the extra step in stating that \u2018[t]here is thus much more law and legal policy to consider than at the time of Rwanda<\/em>\u2019, thus justifying his vote on this question. See <\/em>Paragraph 6. He further refers to the ILC\u2019s 2011 Guide<\/a> on reservations, which itself leaves open the possibility that a reservation to the compromissory clause is invalid. See <\/em>Paragraph 48. Ultimately, even he does not pronounce conclusively on why prima facie <\/em>jurisdiction does <\/em>exist, but his observations provide us sufficient indication to explain his vote.<\/p>\n Notwithstanding the legal arguments advanced by the Judge, I find two observations by him to be somewhat incompatible with the restraint expected of a member of the Court. First, during the closure of oral hearings, Judge ad hoc <\/em>Simma asked the UAE the following question See\u00a0<\/em>Verbatim Record 2025\/2<\/a>\u00a0(pg 49):<\/p>\n \u2018What are the reasons that made the United Arab Emirates enter its reservation to Article IX of the Genocide Convention?\u2019<\/p>\n This question is not only irrelevant to a inquiry into the Court\u2019s jurisdiction over a dispute per se, it hints at a legal predetermination being made based on the political considerations that led to the lis. <\/em>Thus, this question falls outside the scope of the judicial function of the Court.<\/p>\n Secondly, and similarly, in paragraph 4 of his declaration, the Judge states that reservations to Article IX of the Convention must be regarded as \u2018a disgrace to the States parties concerned\u2019. This is a comment on the wisdom <\/em>and not legality of a sovereign right available to States. This comment was not necessary for the Judge\u2019s legal observations, and could have been omitted.<\/p>\n It is the second question that has seen greater judicial discussion in this case. As stated above, Judge Yusuf states in his dissent that the right to be heard on jurisdiction is a statutory right guaranteed under Article 79 et seq. See <\/em>Paragraph 25. It cannot be supplanted by a negative finding of prima facie <\/em>jurisdiction. To use the Court\u2019s language, there cannot be any prejudice caused to the jurisdiction on the merits based on prima facie <\/em>jurisdiction. See <\/em>Paragraphs 2-4.<\/p>\n However, by locating a manifest lack of jurisdiction, the Court effectively prejudices and negates any consideration of jurisdiction on the merits altogether.\u00a0 Thus, he finds the practice of removing a case from the General List at the provisional measure stage itself contrary to law. For him, this can only happen if the jurisdiction of the Court is based forum prorogatum \u2013 <\/em>a situation where the Applicant has no argument, but a request for jurisdiction by the Respondent, which has been left unaffirmed.<\/p>\n Judge ad hoc <\/em>Simma on the other hand, takes no principled opposition to the manifest lack of jurisdiction standard. Instead, he observes that given the number of Judges who have expressed concerns with the legality of Article IX reservations, such lack of jurisdiction cannot be considered \u2018manifest\u2019 or \u2018self-evident\u2019. See <\/em>Paragraph 9. Instead, he finds further hearings on jurisdiction necessary to decide such a claim, exhorting the possibility that the Court find no prima facie<\/em> jurisdiction, but end up finding jurisdiction on merits when having heard both parties subsequently. See <\/em>Paragraph 10.<\/p>\nIntroduction<\/strong><\/h3>\n
The Arguments<\/strong><\/h3>\n
The Questions in Order<\/strong><\/h3>\n
On Prima Facie<\/em> Jurisdiction<\/strong><\/h3>\n
On Manifest Lack of Jurisdiction<\/strong><\/h3>\n