Prelude to Sudan v. UAE
As evident from Sudan’s Application Instituting Proceedings in Sudan v. UAE before the International Court of Justice (ICJ or Court) and the UAE’s declaration demanding the “immediate dismissal” of that case, it was predicted that the provisional measures hearing of 20 April 2025 would largely concentrate on the dual between “prima facie jurisdiction” and “manifest lack of jurisdiction.” Indeed, Sudan argued that the Court had prima facie jurisdiction while the UAE insisted that the Court’s lack of jurisdiction was manifest. In line with the recent trend of the Court, it was predictable that Sudan would confront the risk of its case being removed from the General List of the ICJ as a result of the UAE’s claim of the ICJ’s “manifest lack of jurisdiction” (see, Verbatim Record 2025/2, p.16, §6).
Though the ICJ ordered the removal of cases from the General List on two occasions and declined to do so on three other occasions (see Nicaragua v. Germany, Order of 30 April 2024, §21), it has yet to develop any consistent standard for this issue. Given the specificity of the current case and the prospects of attracting similar cases before the ICJ, it is expected that the Court will articulate its jurisprudence in this area, thereby creating judicial certainty and ensuring judicial economy.
Removing a Case from the General List of the ICJ
Once entered onto the General List, a case may be removed from it in four ways: (i) after a merits/reparation judgment, (ii) after a preliminary objections judgment, (iii) through discontinuance by the disputant States, and (iv) via summary dismissal (see Quintana). While the first three modes of removal have origins in the statutory laws of the ICJ, the fourth mode – which is also the subject matter of the current discussion – developed out of the case law of the Court.
In the case of summary dismissal, the Court has the power to dismiss a case in limine litis at the provisional measures phase without entering into the preliminary objections phase and to order the removal of the case from the General List. This practice can be best exemplified by two Legality of Use of Force cases, i.e., Yugoslavia v. Spain and Yugoslavia v. USA.
Prior to the 1978 Amendment to the Rules of the Court, the ICJ could issue an order removing any case without a jurisdictional basis from its General List. The ICJ was required to do so due to the fact that all cases submitted to the ICJ were entered into its General List irrespective of the existence of a jurisdictional basis. There are at least eight such cases involving the USA (six Aerial Incident of 7 November 1954 cases) and the UK (two Antarctica cases) (see Yee, 396–97) that were instituted before 1978. These were aimed at forum prorogatum cases, i.e., cases where the applicant State files a case with an invitation to the respondent State to accept the jurisdiction of the Court.
The incorporation of Article 38(5) into the Rules of the Court prevents forum prorogatum cases from being entered onto the General List, thus relieving the Court of the necessity of removing them. In other words, the current practice of the ICJ authorizes only one form of summary dismissal: removal by the Court at the provisional measures phase due to a “manifest lack of jurisdiction.”
Evolution of the “Manifest Lack of Jurisdiction” Test
The term “manifest lack of jurisdiction” first appeared in Mani’s International Adjudication: Procedural Aspects (Martinus Nijhoff Publishers, 1980, p. 89). He writes that “in a case where the application displays a manifest lack of jurisdiction and no positive response is likely to come forth on the part of the respondent to adequately cure the defect, it does not seem to be a sound policy for the Court to further prolong the proceedings.” Mani found his support in Abi-Saab’s Les Exceptions préliminaires dans la procédure de la Cour internationale (Édition A. Pedone, 1967, p. 49).
In the jurisprudence of the ICJ, the “manifest lack of jurisdiction” can be traced back to the Nuclear Tests cases (Australia v. France and New Zealand v. France). In these cases, France, though it did not participate in the provisional measures hearing, requested the Court to remove the case from the General List due to its contention that the Court was “manifestly not competent in the case” (Order of 22 June 1973, §§6, 34). However, the Court subsequently held that “the present case is not one in which the procedure of summary removal from the list would be appropriate” (Judgment of 20 December 1974, §14).
Interestingly, the ICJ indicated the notion of “manifest lack of jurisdiction” in the Fisheries Jurisdiction cases (UK v. Iceland and Germany v. Iceland). In the language of the Court, it should not indicate provisional measures if “the absence of jurisdiction on the merits is manifest” (Order of 17 August 1972, §14). Apparently, the Court missed the chance to deal with a more fitting case, i.e., the Pakistani Prisoners of War case (Pakistan v. India) due to subsequent postponement and subsequent discontinuance, both at the instance of Pakistan. Notably, the case was based on Article IX of the Genocide Convention, upon which India had made a reservation.
The “manifest lack of jurisdiction” test gained its current momentum in the two Legality of Use of Force cases mentioned earlier. In both cases, the Court concluded that it “manifestly lacks jurisdiction to entertain Yugoslavia’s Application” (Yugoslavia v. Spain, Order of 2 June 1999, §35; and Yugoslavia v. USA, Order of 2 June 1999, §29).
In Yugoslavia v. Spain, the Application instituting proceedings was based on the Optional Clause Declaration of the ICJ and Article IX of the Genocide Convention. The Court did not find it had jurisdiction in this case due to Spain’s ratione temporis reservation to the Optional Clause Declaration (twelve-month requirement) and its reservation to Article IX of the Genocide Convention. In Yugoslavia v. USA, Yugoslavia’s application was based solely on Article IX of the Genocide Convention. Similarly, the Court did not find it had jurisdiction due to the US reservation to Article IX of the Genocide Convention.
Apparently, a valid reservation to the jurisdictional basis renders jurisdiction manifestly lacking. These cases can be distinguished from Serbia and Montenegro v. Italy, where the Court did not find prima facie jurisdiction but declined to declare a “manifest lack of jurisdiction” (Order of 2 June 1999, §§32–34). The rationale can be traced to the fact that both Serbia and Montenegro and Italy were parties to the Genocide Convention without reservations. This may explain why the Court took the liberty of hearing both parties at the preliminary objections stage to decide the fate of the case.
The most interesting case to understand the “manifest lack of jurisdiction” test is the Armed Activities (New Application) case (DRC v. Rwanda). In this case, the Democratic Republic of the Congo based its application on eight jurisdictional bases, including the Genocide Convention. While deliberating the provisional measures, the Court found that there was no prima facie jurisdiction due to Rwanda’s valid reservations (including to the Genocide Convention), non-exhaustion of diplomatic negotiations, non-accession of Rwanda, improper categorization of the dispute, and the absence of a dispute (see Evans and Brown, pp.783–785). However, the Court declined to remove the case from the General List, stating that it did not find a “manifest lack of jurisdiction” without providing any reasoning.
The above-mentioned cases implies that the “manifest lack of jurisdiction” test developed during the provisional measures phase. Interestingly, it becomes relevant in cases where the Court does not find prima facie jurisdiction, with the exception of Equatorial Guinea v. France.
Manifestation of the “Manifest Lack of Jurisdiction” Test
Though the concepts of “manifest lack of jurisdiction” and “prima facie jurisdiction” originated in the same case, i.e., the Nuclear Tests cases, the former did not gain substance like the latter. Now, it is well established, as evident from DRC v Rwanda, that the threshold for “manifest lack of jurisdiction” is higher than that of “prima facie jurisdiction.” This is evident from the fact that a finding of “manifest lack of jurisdiction” leads to the removal of a case from the General List, while a finding of “prima facie jurisdiction” does not. It has been seen, as illustrated by Georgia v. Russia, that the Court may find prima facie jurisdiction in the provisional measures phase but fail to find actual jurisdiction in the subsequent phase. Though there is no concrete case to the contrary, it is also hypothetically possible. On the other hand, the Court does not get any opportunity to deal with the jurisdiction of a case following its removal. Thus, it is logical to have a higher threshold for the “manifest lack of jurisdiction” test.
As mentioned earlier, the Court has not clarified the details of the “manifest lack of jurisdiction” test. The ICJ in Yugoslavia v. Spain and Yugoslavia v. USA held that, in order to meet the “manifest lack of jurisdiction” test, “it appears certain that the Court will not be able to adjudicate on the merits.” Judge Higgins, in her Separate Opinion in Yugoslavia v. Spain (§29), mentioned “it is clear beyond doubt that no jurisdiction exists in a particular case” to imply “manifest lack of jurisdiction.” Most prominently, Judge ad hoc Dugard in DRC v. Rwanda suggested that the Court ought “to adopt guidelines for the interpretation of the test of ‘manifest lack of jurisdiction’ which would enable the Court to consider factors such as the history of the Application, the likelihood that the Applicant will be able to show in future that there exists a reasonable connection between the dispute and the treaty invoked to found jurisdiction […] and the prospects of any preconditions for the establishment of jurisdiction being met”.
The obvious consequence of a finding of “manifest lack of jurisdiction” is the removal of a case from the General List. Due to the absence of any legal provisions dealing with summary dismissals, the Court relied on the principle of “sound or proper administration of justice” to reach this decision (Yugoslavia v. Spain, Order of 2 June 1999, §35; Yugoslavia v. USA, Order of 2 June 1999, §29; Serbia and Montenegro v. Belgium, Judgment of 15 December 2004, §32; and DRC v. Rwanda, Judgment of 3 February 2006, §25). In Serbia and Montenegro v. Belgium, Judge Higgins saw this practice as “an exercise of inherent power to protect the integrity of the judicial process” while Judge Kooijmans viewed it as “an instrument of judicial policy to safeguard the integrity of the Court’s procedure.”
To Remove or Not to Remove the Sudan Genocide Case?
As predicted (see, Backer, Diamond), the significant part of the provisional measures hearing focused on the (in)validity of the UAE’s Article IX reservation. Admittedly, since the Genocide Convention is the sole jurisdictional basis of the case, it was imperative for Sudan to establish that the UAE’s existing reservation does not affect Court’s prima facie jurisdiction. To that end, Sudan first argued that the UAE’s Article IX reservation – which, it contended, differs from those of the USA, Spain, or Rwanda – does not deprive the Court of jurisdiction in this case (Verbatim Record 2025/1,, pp.29-34). It alternatively argued that the UAE’s reservation is incompatible with the object and purpose of the Genocide Convention (Verbatim Record 2025/1, pp.34-39).
Cognizant of the Court’s jurisprudence on the “manifest lack of jurisdiction” test in the two Legality of Use of Force cases, Sudan argued that the present case is distinguishable from them on three grounds: (i) Yugoslavia’s failure to contest the validity of the reservations in question; (ii) the clear and unambiguous nature of those reservations; and (iii) the lack of factual evidence relating to the constituent elements of genocide. In Sudan’s view, the different wording of the UAE’s reservation renders it distinct from earlier cases (Verbatim Record 2025/1, pp.22-23, §§23-26). However, Sudan’s omission to challenge the Court’s jurisprudence on the “manifest lack of jurisdiction” test may be interpreted as an acknowledgment that the Court’s position on this issue is settled, and that the present case does not trigger the application of that test for the above-mentioned reasons.
The UAE, on the other hand, began its submissions by asserting that the Court manifestly lacks jurisdiction in light of existing jurisprudence, particularly the two Legality of Use of Force cases and the Armed Activities case. It argued that a manifest lack of jurisdiction exists because the sole jurisdictional basis of the case, i.e., the Genocide Convention, is subject to a clearly formulated, duly notified, and properly registered valid reservation (Verbatim Record 2025/2, pp.16-23, §§7-29). The UAE further argued that, as a consequence of such a finding, the Court should remove the case from the General List in limine litis. Its arguments are based on the Court’s jurisprudence developed in the Nuclear Tests case, the two Legality of Use of Force cases, and the Armed Activities case (Verbatim Record 2025/2, pp.23-27, §§23-43). Additionally, the UAE contended that its Article IX reservation is valid under international law and consistent with the Court’s jurisprudence.
The lifeline of this case now depends on how it assesses Sudan’s arguments regarding the scope and validity of the UAE’s reservation. The supplementary questions posed by Judge Tomka and Judge ad hoc Simma concerning UAE’s reservation at the end of the oral hearings (Verbatim Record 2025/2, p.49) suggest that the Court may invest additional effort in scrutinizing this issue. Now, it remains to be seen to what extent Sudan’s arguments on the UAE’s reservation will impact the “manifestness” of the jurisdiction of the Court. On the other hand, Sudan’s omission to challenge the Court’s jurisprudence on the removal of cases from the General List, coupled with the UAE’s strong arguments grounded in the Court’s established case law, suggests that it is highly unlikely the Court will depart from its position in the present case, given its consistent practice of safeguarding legitimacy, coherence, and judicial economy.
On a separate note, given the frequency of requests for the removal of cases from the General List, the recent surge in politically motivated cases, and the absence of established guidelines on the “manifest lack of jurisdiction” test, the Court should also consider seizing this opportunity to articulate clear guidance on the matter, in the interest of judicial economy and the proper administration of justice.