Indian Judge at the ICJ: New Developments

According to a report by Dhanajay Mahapatra in the Times of India, Hon. Justice Dalveer Bhandari of the Indian Supreme Court is likely to be nominated by the Government of India for the position of a permanent judge at the ICJ. Readers may recall that we have discussed this issue before (here). In that post, I had said that an Indian judge could fill the vacancy arising out of the retirement of Judge Owada. It now appears that an Indian judge would fill the vacancy arising from the departure of Judge Awn Shawkat Al-Khasawneh, who left in order to take up the position of the Prime Minister of Jordan. India had supported Judge Al-Khasawneh’s in getting elected to the ICJ, and “MEA [India’s Ministry of External Affairs] circles believe that India’s nominee for the judge’s post in ICJ will get support from Jordan along with friendly neighbours like Sri Lanka and Bangaldesh.”

The Times of India article offers a fascinating insight into the Indian practice relating to the nomination of jurists to the ICJ. As the article details, the selection process involved both the Government of India and Indian national group at the Permanent Court of Arbitration (PCA).  To recap, the process of appointment of judges to the ICJ is governed by Article 4 of the ICJ Statute, which provides, inter alia, that:

1. The members of the Court shall be elected by the General Assembly and by the Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration, in accordance with the following provisions.

India’s national group in the PCA comprises of retired Judges M. H. Kania and Y. K. Sabharwal, as well as senior advocate B. Sen. It appears that in the end, the list of possible names narrowed down to P. S. Rao, an ex-legal advisor in the Indian Ministry of External Affairs and currently an arbitrator in a dispute between India and Bangladesh at the PCA, and Justice Dalveer Bhandari. P. S. Rao’s name had been proposed by the Prime Minister’s Office to the national group. Initially, two of the three members of the PCA’s India national group were in favour of the nomination of P. S. Rao, however, after two months of deliberations, the national group chose to settle on Justice Dalveer Bhandari because of his “pro-poor and pro-social equity judicial disposition“.

Needless to say, this is great news. Its been over 20 years since India had a permanent judge on the ICJ (Justice R. S. Pathak, the last Indian permanent judge, retired in 1991). Justice Dalveer Bhandari is currently the third seniormost judge at the Supreme Court and is due to retire on 30 September 2012. As Justice bhandari’s profile indicates, apart from his work at the Supreme Court, he has an LL.M. from Northwestern University, Chicago, and has attended several international law conferences and events. He is also the President of the India International Law Foundation. Personally, I’ve had the opportunity to meet Justice Bhandari a couple of times during his visits to National Law University, Jodhpur, and I’ve always been impressed by his knowledge of the international legal order and interest in international developments. 

Needless to say, these developments also offer an opportunity to reflect upon the Indian practice and procedure for nomination to the ICJ. For a critical perspective on Justice  Bhandari’s appointment, I urge you to see this comment by “C. I. Singh” on my previous post, arguing that someone with direct experience in international law and international dispute settlement, like P. S. Rao, would have been better suited for the position. Whereas the commentor seems to make a reasonable point with regards to P. S. Rao’s experience, I disagree in principle when he or she states that P.S. Rao “would have been the right candidate as he is far more qualified to go up against other ICJ judges and protect India’s interests.” This, in itself, should not be a criteria for nomination to the ICJ: the position of permanent judge at the ICJ should be above and beyond protecting national interests, and it’s not about going up “against” other ICJ judges.   

That internal debate aside, ILCurry certainly hopes that we get to see an Indian jurist at the ICJ soon!

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18 thoughts on “Indian Judge at the ICJ: New Developments

  1. An Indian at ICJ would indeed be fantastic. India has stayed out of ICJ for 21 years and Judges from China, Japan, Russia have enjoyed being at the ICJ for decades and India has not nominated a judge for so many years. Since independence, India has played a pioneering and leadership role in elaborating and crystallizing a Third World position in international law, particularly within the United Nations. India should want to enhance further its prestigious standing by nominating a renowned person, instantly recognized internationally. For a judge to play an effective role in the International Court, however, it is not enough to have been an experienced lawyer, judge or law professor. They must be a master of the intricacies, great details and special ways of handling international law, which has expanded exponentially in the last half century and become thick-structured and highly technical. He has also to know the milieu and the main personalities in the field and to be used to dealing with colleagues coming from very different legal systems.

    And that is the point of going toe to toe with other international Judges at ICJ. We in India are fortunate to have someone like that in Dr. P.S Rao but that is not how the National Group is looking at this nomination. It might not be the National Groups fault since they are all from the Supreme Court system being former CJI and Sr. Advocates of Supreme Court of India. It is very interesting to note that all the permanent members except UK have now as Judges of the ICJ their former international law legal advisers like Dr. P.S. Rao. Even in the case of the UK, the judge was a close consultant of their Foreign office. It is also very interesting that P.S Rao was chosen as Ad-Hoc Judge by Singapore for their case in ICJ and in the case with Bangladesh but Indian National Group does not consider all that experience and credentials important to serve India at the ICJ as a permanent judge.

  2. Independence of Judiciary can be maintained if independent persons are appointed. legal advisor to the Ministry of External affairs is not an independent person. He reports to a boss – Secretary or Minister. He is like a in house counsel whose advise cannot be even considered as an independent professional advice. If one looks to the history of appointments to ICJ, the appointments from Commonwealth Countries is from the background of Judges, practicing Lawyers or Professors. The present Judge from UK was not a departmental advisor but an independent lawyer who was designated as Queens Counsel. Thus choice of sitting Judge as India’s nominee is a correct decision.

  3. Pingback: (India; ICJ) Indian Judge at the ICJ: New Developments « My Law Journal

  4. Dear Mr. Katarki,

    Thank you for your comment. I have three points to make in response to your comment:

    1. Whereas it may be true that national judges are independent, and therefore ideal ICJ nominees, I think it is quite different to say that anyone who reports to a boss is not independent. I think there is little empirical, or anecdotal even, evidence to suggest that anyone who reports to a boss (esp. MEA legal advisors) are definitely not independent. In fact, going by that logic, all people below the highest rung of organizational hierarchy in a society definitely cannot be independent and therefore not be independent enough for appointment to the ICJ. That defnitely sounds odd, going by the diversity of people who have served on the court. Independence definitely is not a function of organizational hierarchy. All that I mean is that it is impossible to definitely say that legal advisors are not independent because they report to a boss. They may or may not be, just like judges may or may not be.

    2. As far as your assertion that “[h]e [legal advisor] is like a in house counsel whose advise cannot be even considered as an independent professional advice” I do not agree. In fact, the very definition of experts suggests that their advice would always be independent. In my opinion, though the advice may not be binding, but there is nothing to say that it is not independent expert advice. Of course, the advice may not be final, or binding: it is advice, after all. But to say that it is not independent is mixing two very different features: independence of expert advice, and the binding nature of an official opinion.

    3. As far as you point regarding the appointments from other commonwealth countries goes, I am a little confused. In the beginning you say that legal advisors are not independent because they report to a boss, but so do professors (to the dean etc.), and in many cases even lawyers. So, I dont know how you can say that professors and practicing lawyers are independent, but not legal advisors. As for Judge Greenwood, he was a professor at the LSE before going to the ICJ, but he had also advised the British government on several issues, including the legality of using force against Iraq. In all those instances, I am sure that he was reporting to a “boss”, but I am also sure that merely that fact does not make him any less independent.

    In fact, Judge Greenwood’s case is an apt example. Recently, he was appointed as an arbitrator in an arbitration between Mauritius and UK over the Chagos islands. Mauritius challenged the appointment of Judge Greenwood as an arbitrator on the ground that his previous role as counsel to the British government and as adviser on “sensitive issues of international law and public policy”, as well as his past appointment to board responsible for appointing new legal advisor to the Foreign and Commonwealth Office gave rise to an appearance of bias (this is what your argument seems to be, as well). However, his co-arbitrators said they were not persuaded that his past activities created justifiable doubts as to his independence and impartiality, especially because he never involved in the Chagos Islands dispute. You can read the full text of the co-arbitrators decision here: http://www.pca-cpa.org/showpage.asp?pag_id=1429

    Finally, it is also relevant to recall the case of another British judge at the ICJ: Sir Gerald Fitzmaurice (an ICJ judge from 1967 and 1973). As the Wikipedia entry of Sir Gerald indicates, prior to his appointment as an ICJ judge he was the UK Counsel to the International Court of Justice at The Hague between 1948 and 1954 and served as the Senior Legal Advisor between 1953 and 1960. So, it is incorrect to say that past practice suggests that legal advisors are not appointed to the ICJ because they are not independent.

    To sum up, I think you need to clarify your definition of “independence”, because as I see it, just because someone has a boss does not make him any less independent. Independence of judiciary is a function of the judge’s office: when in the judges’ shoes, one is required to eschew professional and personal biases and opinions. That does not mean that judges, as thinking human beings, cannot have any personal opinions or past affiliations. Of course, independence is also a good personal quality for any reasonable human being, but without any overwhelming evidence of professional misconduct or bias, I think it is unreasonable to say that a legal advisor is not independent simply because he or she reports to a boss.

    Shashank

  5. Dear Mr Shashank,
    Thanks for your pursuasive reply. Generally, I agree everyone is said to be discharging his duties and functins independently. But, in a narrow sense, he should be seen to be discharging his duties independently. A departmental expert who reports to a boss, who is subject to a disciplinary control and who is on a regular pay roll is not considered as an independent advisor. However, a judge of the superior court of jurisdiction is independent in every sense because; his tenure is secured as he cannot be removed except by a grand process of impeachment, and even his Salary is protected ( paid out of contingency fund India which is not subject voting in Parliament in India). Practicing lawyer is considered as an independent person, as he may take or reject a case and charge his fees freely. He takes instructions from none other than his client and fearlessly defends his client even against the charges of sedition or heinous crimes. Professor is also considered as an independent person – though he may not enjoy the protection that the judges hacve. Professor is not answerable to any one on the subject of his discipline. He has a freedom of academic expression. HIs inconvenient opinion cannot be a ground for his dismissal, whereas a departmental expert may suffer dismissal on a ground that he or she holds opinion inconsistent with the government.

  6. The important point is did the Indian National Group nominate the right candidate? I believe the answer is no because an International Law expert was not chosen. This was India’s chance to promote, showcase and build Public International Law experts (advisers, professors, etc.) for the future . But that did not happen and that is sad for the International law in India. Every single judge at ICJ is an expert in International Law.

    As for the second point about can an ex-Secretary be independent? The answer is obviously yes but the real point is that how does one become a judge? After all Supreme Court Judges became judges after a process and were not born Judges. They were first legal experts and then chosen to be Judges and empowered to be independent. So why can’t an expert legal Counsel become an Independent Judge?

    Anyway, this is a very interesting moment for International Law in India and I hope people participate now and the future to protect this as India needs these experts now than ever since it wants to become a true global player.

  7. Expertise in international law is necessary, if the nominated candidate ICJ were to be a professor. But, if a practicing lawyer or Judge is nominated, the the question to considered is his ability to handle cases. Expertise among lawyers or judges may help but not fully necessary. Lawyers or Judges are expected to handle all types of cases namely; the title disputes, breach of contract from insurance to shipping, liability under the tort, water disputes, legality of the decisions of public authority etc. Art of handling a cause includes firstly, reaching a finding on fact by adhering to the rules of natural justice ; secondly, the identification of substantive law ; and thirdly, the application of substantive law to the facts found. Disputes before the ICJ are not different. Disputes on title to the territory, breach of treaty, liabilities arising from inter State torts, water disputes, legality of the decisions of States with regard to privileges and immunities or use of force. An expert in international law may be ahead in the beginning while identifying the law, but on facts and application lawyer or judge would have huge advantage. In the end, ICJ is expected to be mix of all who had been judges, legal experts, diplomats, lawyers and professors.

  8. @ C.I.Singh : Expertise in international law is necessary, if the nominated candidate to ICJ were to be a professor. But, if a practicing lawyer or Judge is nominated, the the question to be considered is his ability to handle cases. Expertise among lawyers or judges may help but not fully necessary. Lawyers or Judges are expected to handle all types of cases namely; the title disputes, breach of contract from insurance to shipping, liability under the tort, water disputes, legality of the decisions of public authority etc. Art of handling a cause includes firstly, reaching a finding on fact by adhering to the rules of natural justice ; secondly, the identification of substantive law ; and thirdly, the application of substantive law to the facts found. Disputes before the ICJ are not different. Disputes are on title to the territory, breach of treaty, liabilities arising from inter State torts, water disputes, legality of the decisions of States with regard to privileges and immunities or use of force. An expert in international law may be ahead in the beginning while identifying the law, but on facts and application lawyer or judge would have huge advantage. In the end, ICJ is expected to be a mix of all who had been judges, legal experts, diplomats, lawyers and professors.

  9. I’m sure what the point is, expertise is not required, just a general sense of jurisprudence is enough? So a lawyer in family law would be fine to become an international law judge on the highest court in the world? If that is the case, why are all the judges at ICJ regarded as International Law experts before being nominated? Did all these countries not have any Supreme Court Lawyers or Judges to nominate and looked for only International experts having no other judge or lawyer available? Look at the ICJ judges today and in the past, majority of them are Legal Advisors or have been members of International Law Commission. Expertise is a big criteria and India does have these experts so why not pick one?

    My point is simple, ICJ is a UN body and is specifically dealing with Public International Law and experts in the filed of Public International Law are appropriate candidates. We did not pick such an expert but the rest of the world does chose public international law experts (judges, lawyers, professors, diplomats). So it is a sad statement on International Law in India.

    • @ C.I.Singh ; I dont say that the ‘expertise is not required, just a general sense of jurisprudence is enough’. The ICJ decides disputes or lis and does not give opinion on abstract questions. Therefore, ability to handel cases is the most important factor. I also do not say that the Judge of the family court is competent to become a Judge of the ICJ. We are discussing the issue in the context of the nomination of a sitting judge of the Supreme Court of India, which is a court of Superior Jurisdiction. India had to decide on the nomination of a candidate, who enhances the prestige of the ICJ by upholding its impartiallity and Independence. Unfortunately, India does not have a professor of International Law of standing. The National Group had choices among lawyers namely F.S. Nariman who leads India in the Kishanganga International Arbitration, R.K.P Shankardass who represents not only India even other countries before the PCA, Soli Sorabji who represented India before ICJ in disputes with Pakistan and M.C. Bhandare who was Chairman of UNESO Appellate Tribunal and U.N. Sub Commissoin for Human Rights. But, the National Group has choosen to go for a Judge, which is not an illogical decision.

  10. The times of India article indicated Dr P. S Rao and Justice Bhandari as the choices. These other great Indians names were not suggested in the short list. Dr P. S. Rao is a well known international law expert being Ad-hoc judge on ICJ, Arbritator for Bangladesh case and former Chairman and member of International Law Commission, so would he not been the right choice? As for professors, there are a few like Rahmatullah Khan, Yogesh Tyagi, R. P Anand that come to mind. But isn’t that a problem, if you believe none in India exist? So now I hope you see my point about the state if International law in India. We have missed an opportunity to promote it in India but countries like China, Japan and others have invested heavily over the past decade in International law and shaping International law via ICJ. An experienced International law expert from India is who we failed to promote.

    • @ C.I.Singh ; I did not say that the National Group had short listed the names I had mentioned among the lawyers who have a standing to be considered for ICJ. I really dont know who was considered or who was not considered by the National Group, as the whole process is non transparent unfotunately. I also do not question the credentials of Dr P.S.Rao, but in comparison to a sitting Judge, I find it difficult to accept his name. However, I fully agree that India has not invested in the development of International Law. But, again, I dont think that by sending a person to ICJ we are going to make our presence felt in the discipline of International Law. India had sent Dr Nagendra Singh – an expert from the Ministry of External affairs to ICJ for 15 years. Even at present, Indian is a member at the Sea Law Tribunal, AN equally prestigious body of the UN.

  11. Now you have hit on the best point. The process of National Group is not transparent and why is that? Why should it not have been open and clear who all were considered?

    As for Dr Rao vs Judge Bhandari, I don’t understand why it is an issue? All of the world would be happy to take Dr Rao as a judge and that is what Singapore did. They chose Dr Rao as their Judge to ICJ. They had the whole world to pick a person and picked him. Also previous Indian ICJ judges Benegal Rau and  Nagendra Singh after they served a term as members of the Interantional Law Commission, and both were excellent civil servants and not lawyers or supreme court judges. It is highly regrettable, in this age of specialization, ignoring a host of Indian Interanational Law Experts and Professors,  to select one who was never exposed to the field of international law.

    • @ C.I. Singh : Benegal Rao was an ICS official drafted to the judiciary and served as dist judge and Calcutta HC judge before he was made advisor to Constituent Assembly and sent to ICJ.

      • Yes, you are correct about being a high court judge in Kolkata but before going to ICJ, he represented India at the UN, was a member of ILC. After all that international law experience he became Judge of ICJ. He was a very dynamic man and amazing Jurist.

  12. @ C.I.Singh ; You are right BN Rao was sent to UN where he earned appreciation though he had no earlier background of international law. Similarly, the govt should start sending persons to UN drawn from judiciary and give exposure to the judges. But, today we live in the world of suspicion and such trips UN are seen as ececutive favours to judges. Any way, I am not batting for present nominee, but I hope he will contribute and is capable of contributing. I may also clarify, I am not against the legal advisors, but they are not seen as independent unfortunately. If we want ICJ to grow independently and fearlessly and promote international law, we should have mix of judges who are drawn from strong judicial background, independent bar, academics and diplomacy.

  13. Pingback: Indian Judge at the ICJ: Some Developments | International Law Curry

  14. Pingback: Last Minute Challenge Against Indian ICJ Nominee Dismissed by Sup. Ct. | International Law Curry

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