ICJ Elections 2014

As a memorandum by the Secretary-General of the United Nations (SG) notes, the terms of five current judges of the International Court of Justice (ICJ) will come to an end on 5 February 2015 (Judges Sepulveda, Keith, Bennouna, Skotnikov, and Donoghue). An election to fill these five vacancies is scheduled for the morning of Thursday, 6 November. The details of the voting procedure to be followed in the General Assembly and the Security Council are described in the SG’s memo.

Following the procedure laid down in Articles 4-7 of the ICJ Statute, nine candidates have been nominated by the national groups of the Permanent Court of Arbitration (PCA) to fill the five vacancies. The nine candidates are: Jemal Agatt (Mauritania); Eugenie Liliane Arivony (Madagascar); Mohamed Bennouna (Morocco); Sayeman Bula-Bula (Democratic Republic of the Congo); Susana Ruiz Cerutti (Argentina); James Richard Crawford (Australia); Joan E. Donoghue (USA); Kirill Gevorgian (Russia); and Patrick Lipton Robinson (Jamaica). Of these, Mohamed Bennouna and Joan Donoghue are  members of the Court already and are seeking to be reelected for a second term. The list of candidates prepared and circulated by the SG also indicates the nominations received by each candidate. James Crawford leads the list of nominations, having been nominated by the PCA national groups of 27 States, followed by Joan Donoghue (22 nominations), Kirill Gevorgian (13 nominations), Mohamed Bennouna and Susana Ruiz Cerutti (11 nominations each), Patrick Lipton Robinson (seven nominations), Jemal Agatt, Eugenie Liliane Arivony, and Sayeman Bula-Bula (one nomination each). Of course, these nominations are not determinative of the results, which are influenced by a number of other professional and geopolitical factors, such as the regional representation on the bench, “P5” candidates, etc. In addition to the list of candidates and the nominations received by them, a document containing the curricula vitae of the candidates has also been circulated by the SG.

From a South Asian perspective, it is interesting to see that hardly any national groups from the region have nominated any candidate. A quick survey reveals that the national groups of only four Asian States have engaged in the process: Viet Nam, Thailand (both nominating James Crawford), China, and the Republic of Korea (both nominating Joan Donoghue and Kirill Gevorgian). India’s case is rather disheartening as it does not even appear to have a national group anymore, with the mandate of all of the PCA members it nominated having expired.

The Marshall Islands’ Case against India’s Nuclear Weapons Program at the ICJ

[Cross-posted from the EJIL: Talk! blog]

Earlier this year, on 24 April, the Republic of the Marshall Islands filed an application against India and eight other States at the International Court of Justice (ICJ), claiming that these States, known or presumed to possess nuclear weapons, have failed to fulfil their obligations under international law with respect to nuclear disarmament and the cessation of the nuclear arms race at an early date. In its application against India, the Marshall Islands accused it of not engaging in negotiations to cease the nuclear arms race, highlighting that India, instead, continues to expand and improve its nuclear arsenal. By an Order dated 16 June 2014 the Court noted India’s objection to its jurisdiction, as well as its refusal to participate in procedural meetings, and decided that the jurisdictional questions must be separately determined before proceeding to the merits. This post explores the basis of the Court’s jurisdiction over the Marshall Islands’ application against India. One reservation to India’s optional clause declaration excluding disputes concerning actions taken in “self-defence” suggests that the Court lacks jurisdiction over the case.

The Marshall Islands relies on different grounds to establish the Court’s jurisdiction in its nine applications. In its applications against India, the United Kingdom, and Pakistan, it invokes these States’ declarations accepting the Court’s compulsory jurisdiction. In its applications against the United States, China, France, Russia, Israel and North Korea – none of whom have made declarations accepting the Court’s compulsory jurisdiction – it calls upon these States to accept the Court’s jurisdiction under the doctrine of forum prorogatum. The application against India is unique because, while India has accepted the Court’s compulsory jurisdiction, unlike the UK and Pakistan, India made a reservation to its Declaration that may exclude the Court’s jurisdiction over the Marshall Islands’ Application.

The Limits of India’s Recognition of ICJ Jurisdiction

On 18 September 1974, Swaran Singh, the then Indian Minister of External Affairs, made adeclaration, on India’s behalf, which recognizes “as compulsory ipso facto and without special agreement … the jurisdiction of the [ICJ] over all disputes”. This blanket acceptance is qualified by a long list of reservations that excludes several categories of disputes from the scope of India’s consent. One broad class of disputes that is excluded are “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, … and other similar or related acts, measures or situations in which India is, has been or may in future be involved”.

At its heart, the Marshall Islands’ case against India concerns “the quantitative buildup and qualitative improvement of [India’s] nuclear forces” (Application, p.25). The question therefore is whether this subject matter is excluded by India’s reservation described above. The mere development of a nuclear weapons program and the maintenance of a nuclear arsenal would most likely not qualify as a “situation of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression”. However, the above reservation is worded rather broadly, and India’s nuclear weapons program may be seen as being “relate[d] to” or “connected with” such situations or “other similar or related acts, measures or situations”.

The Marshall Islands’ Application appears to acknowledge this point, yet fails to address the hurdle posed by the reservation, noting only that India’s Declaration is “without pertinent reservation” (Application, p. 24). For example, the Application quotes India’s statement at the 2009 plenary of the Conference on Disarmament, wherein India stated that “[n]uclear weapons are an integral part of our national security and will remain so, pending the global elimination of all nuclear weapons on a universal, non-discriminatory basis” (Application, p. 11). The Application also refers to India’s no-first-use-policy and quotes the Indian government’s stance that “nuclear weapons will only be used in retaliation against a nuclear attack on Indian territory or Indian forces anywhere” (Application, p. 11). These statements and India’s official no-first-use-policy suggest that India’s nuclear weapons program is designed and implemented primarily to safeguard national security and to defend the country in situations of hostilities and armed conflicts. Any dispute relating to India’s nuclear weapons program and arsenal would, therefore, appear to be excluded from the Court’s jurisdiction by virtue of the broadly worded reservation found in India’s 1974 Declaration.

Interpretation of National Defence Reservations

While some States and scholars argue that disputes relating to national defence and security are non-justiciable by their very nature, reservations similar to the broadly worded “self-defense” reservation included in India’s Declaration are not very common. A quick survey of the 70 declarations available on the Court’s website as of 19 June 2014 reveals that 7 contain some variation of a “self-defense” reservation.

In addition to the Court’s approach towards the interpretation of optional clause declarations in general, two disputes that may shed light on the issue are the Nuclear Tests Cases brought byAustralia and New Zealand against France in 1973 concerning the legality of atmospheric nuclear tests conducted by France in the South Pacific region. In those cases, Australia and New Zealand sought to base the Court’s jurisdiction on, inter alia, France’s 1966 declaration recognizing compulsory jurisdiction. The 1966 French Declaration in effect at that time, however, contained a reservation similar to the one found in India’s 1974 Declaration that excluded “…disputes concerning activities connected with national defence”. In the end, the Court was not called upon to address this issue as it found that the case had lost its object in light of the public assurances given by high-ranking French officials that France would cease atmospheric nuclear tests in the South Pacific. Nevertheless, several judges of the Court addressed the issue in their individual opinions. Judge de Castro was of the view that the French “reservation certainly seems to apply to the nuclear tests”. Judge Forster went further and spoke of the “absolute sovereignty which France, like any other State, possesses in the domain of its national defence”. Citing the example of the UK, Judge Gros noted that Australia’s and New Zealand’s claims “to impose a certain national defence policy on another State is an intervention in that State’s internal affairs in a domain where such intervention is particularly inadmissible”.

Commenting on these cases, Professor Oscar Schachter, in his 1982 general course at the Hague Academy, noted that “a term such as ‘national defence’ allows a very wide margin of appreciation and a court should be exceedingly cautious to avoid imposing its own interpretation on whether a particular act is in the national defence of the State concerned”. While the exact language of the French and Indian reservations may be different, in general, the Court has recognized that, given thesui generis nature of optional clause declarations, the “régime relating to the interpretation of declarations made under Article 36 of the Statute is not identical with that established for the interpretation of treaties by the Vienna Convention on the Law of Treaties” (Fisheries Jurisdiction (Spain v. Canada), Judgment of 4 December 1998, para. 46). In particular, the Court has explained that whatever the basis of consent to its jurisdiction, “the attitude of the respondent State ‘must be capable of being regarded as an ‘unequivocal indication’ of the desire of that State to accept the Court’s jurisdiction in a ‘voluntary and indisputable’ manner” (Questions of Mutual Assistance (Djibouti v. France), Judgment of 4 June 2008, para. 62). Such a subjective interpretative approach, as reflected in the “unequivocal indication” standard, appears to favour a reading of India’s Declaration that excludes disputes relating to India’s nuclear weapons program from the scope of India’s consent to the Court’s compulsory jurisdiction.

Further Options for India

Having formally objected to the Court’s jurisdiction, India now has two options. It can choose to participate in the ICJ proceedings in order to formally lodge its legal objections to the Court’s jurisdiction. Or, as envisaged in Article 53 of the Court’s Statute, it can choose to not appear before the Court at all, as France did in the Nuclear Tests Cases. Interestingly, the Court’s Order of 16 June fixing the time limits for pleadings on jurisdictional questions notes that India refused to participate in a meeting called by the President of the Court to discuss preliminary procedural issues. India, therefore, may be leaning towards non-appearance.If India refuses to appear, Article 53(2) of the ICJ Statute requires that the Court must satisfy itself that it has jurisdiction and that the claim is well founded in fact and law.

While not participating in the proceedings appears to provide an easy way out, India’s reasoned engagement in the proceedings by objecting to the Court’s jurisdiction would show its commitment to the international rule of law, as encouraged by Article 51 of the Indian Constitution, which calls upon the State to “foster respect for international law” and to “encourage settlement of international disputes by arbitration”.  The last time India was involved in a dispute before the ICJ was in 1999 when Pakistan accused India of shooting down a naval aircraft in Pakistan’s airspace. In that case, too, India objected to the Court’s jurisdiction on the basis of the so-called “commonwealth reservation” to its optional clause declaration. However, it fully participated in the written and oral proceedings on the issue of jurisdiction, and the Court eventually agreed with India and found that it lacked jurisdiction (Judgment, para. 46).  (Incidentally, unlike 1999, this time, the Court also includes a permanent judge of Indian nationality, Judge Dalveer Bhandari having been elected to that position in 2013.)

Finally, it is important to remember that the argument that the Court does not have jurisdiction to hear the Marshall Islands’ case against India has nothing to do with the undoubted desirability of living in a world free of nuclear weapons, which are known to cause unbearable suffering and vast destruction. Instead, the Court’s lack of jurisdiction is only a sobering reminder that public international law generally and the jurisdiction of the Court, in particular are founded on the voluntary consent of States. To quote Judge Ignacio Pinto from the Nuclear Tests Cases, the Court “has no right to hand down a decision against a State which by a formal declaration excludes its jurisdiction over disputes concerning activities connected with national defence”.

Back from Break, with a Summer Update!

Apologies for the extended summer break (not for the lack of thoughts or developments, though).

Let’s begin with a recap of what’s been happening for India at the international stage over the summer:

The ICJ and Justice Bhandari’s election:

1. Justice Bhandari was finally sworn-in as a judge of the International Court of Justice on 19 June 2012 (right before the Diallo judgment was read). For those interested, here’s a photo of Justice Bhandari being sworn in, and a video of him making the (rather short) solemn declaration (the oath).

2. On the debate surrounding Justice Bhandari’s nomination (see this for some background), two main criticisms have been leveled against Justice Bhandari’s nomination by India for the ICJ. The first, as reflected here, argues that as a national judge with little or no real experience in international law, Justice Bhandari’s nomination by the Indian national group of the PCA reflected absurd decision making. From an international legal perspective, the underlying assumption of this view is thus: “a judge may be well-versed with domestic legal traditions, but one assumes that a Judge at the International Court of Justice, the principal judicial organ of the United Nations, responsible for adjudicating on questions of international law (Article 38), would possess knowledge of international law!” The second criticism, as argued by Arghya Sengupta in an OpEd in The Hindu, takes issue with the nomination of Justice Bhandari, a sitting Supreme Court Judge, by the government of India on grounds of undermining the independence of the Supreme Court Judge (Justice Bhandari). As much as I understand, and perhaps even agree with, some of the sentiments behind these arguments, I still disagree with several individual arguments inherent in these criticisms, especially in light of the rather inchoate state of the international legal profession in India. However, I’d save my thoughts on this for later.

3. I’ve blogged about a right to Information application seeking information on Justice Bhandari’s nomination earlier. In response, the Ministry of External Affairs denied some information on Justice Bhandari’s nomination on the ground that the RTI Act allows withholding information related to strategic interests of the country, and besides it would also affect canvassing for Justice Bhandari. Now, the Central Information Commission has asked the MEA to provide the requested information. Interestingly, the CIC has also asked for the Indian national group of the PCA to answer some of the queries (could an argument be made here that the national group is not a “public authority” for the purposes of the RTI Act?).

Moving on to the Enrica Lexie incident (covered previously here and here):

There’s been considerable discussion on the international legal aspects of the incident.

1. Duncan Hollis, over on Opinio Juris, takes a look at the incident through the prism of the SS Lotus case decided by the PCIJ.

2. A debate in The Hindu captures the essential position and arguments both for and against the jurisdiction of Indian courts over the Italian marines. Samir Saran and Samya Chatterjee argue that the Indian courts do not have jurisdiction. Prabir Purkayastha and Rishabh Bailey, referring to Article 97 of the UNCLOS and the SS Lotus judgment, argue that Indian courts “also” have jurisdiction over the incident (as opposed to exclusive jurisdiction of Italy). Finally, Samir Saran disputes the above interpretation of Article 97 and also makes a very interesting argument based on the Indian Merchant Shipping Act.

3. Meanwhile, and perhaps more importantly, Judge Gopinath of the Kerala High Court has rendered (a reasonably well crafted) judgment in the writ petition filed by the Italian marines arguing that Indian courts do not have jurisdiction. The Court ruled that the Indian courts can exercise jurisdiction over the Italian marines under the Indian Penal Code and the Code of Criminal Procedure as they were within India’s contiguous/exclusive economic zone. It addressed a number of other important matters such as the sovereign immunity of the marines (held no sovereign immunity), the “compatibility” of several national laws (including the SUA Act) with the UNCLOS (held are “compatible”), and the relevance of past precedence (the Raymund Genacio case — differentiated on facts). Particularly interesting is the Court’s interpretation of the UNCLOS. For example, in defining valid exercise of sovereign authority by India in the territorial-, contiguous-, and exclusive economic zones under the UNCLOS, it notes:

To hold that a coastal state has no right whatsoever to protect its nationals exercising their legitimate rights inside the coastal state’s CZ/EEZ, would be nothing but a total travesty of justice and an outrageous affront to the nation’s sovereignty. Such a view would mean that any day, any passing-by ship can simply shoot and kill, at its will, fishermen engaged in earning their livelihood; and then get away with its act on the ground that it happened beyond the territorial waters of the coastal state. Such a view will not merely be a bad precedent, but a grossly unjust one, and will go against all settled principles of law. (para. 33)

At the WTO:

1. On 25 June, the DSB established a Panel with standard terms of reference in the poultry dispute between the US (complainant) and India (DS430: India — Measures Concerning the Importation of Agricultural Products).

2. According to news reports, the US has threatened to challenge India’s compulsory license for Nexavar at the WTO. This comes after reports that India’s commerce minister had defended the WTO consistency of the license.

Bilateral Investment Treaties/Arbitration:

1. The Sistema dispute appears to be moving forward, with the six-month notice period nearing its end and the selection of a legal team by India. Several names have been suggested, including Mr. Rodman Bundy, Prof. Donald McRae and Senior Advocate A K Ganguli.

2. Several NGO’s have written a letter to Prime Minister Manmohan Singh expressing concern over the ongoing US-India BIT negotiations. Their main attack appears to be against investor-state dispute settlement provisions.

3. In Nepal, a breakaway faction of the Unified Communist Party of Nepal (Maoist) has said that it will work towards scrapping of the recently concluded BIT with India.

4. The latest on the Vodafone BIT dispute is that it is moving forward with India not agreeing to Vodafone’s demands. Reports suggest that Prime Minister Singh would soon take a decision on Vodafone’s plea “seeking an undertaking that the [retrospective] amendment would not apply to it.”

And, finally, here’s the quote of the summer by none other than India’s (“underachieving“) Prime Minister:

“there are no international solutions to India’s problems”

– Prime Minister Manmohan Singh, returning from his trip to Los Cabos for the G20 and Rio.

A Freudian slip now, Mr Singh? : )

BREAKING: Justice Bhandari Elected to ICJ

The results of the ICJ elections held today in New York are out. India’s nominee, Justice Dalveer Bhandari, has been elected to the World Court. Justice Bhandari obtained 122 votes in th UNGA and 13 votes in the UNSC. Justice (retd.) Florentino Feliciano, the other nominee from the Philippines, secured 58 votes in the UNGA. The official ICJ press release, which includes a lengthy curriculum vitae of Justice Bhandari circulated by the UN Secretariat, can be found here.

ILCurry congratulates Justice Bhandari on his appointment to the ICJ. The last Indian to serve at the ICJ was Raghunandan Swarup Pathak, who retired in 1991.

UPDATE (28 April 2012):

Here are some official photos from the UN website of the elections at the UN headquarters in New York:

Last Minute Challenge Against Indian ICJ Nominee Dismissed by Sup. Ct.

The elections for a vacant judge’s position at the ICJ are scheduled for today (April 27). As previously noted, the two nominees are: Justice Dalveer Bhandari (India) and Justice (retd.) Florentino Feliciano (Philippines).

Some recent reports suggest that Justice Bhandari’s nomination was challenged (unsuccessfully) before the Supreme Court of India. An Indian LL.M. student filed a PIL challenging the nomination of Justice Bhandari on the ground that the nomination of a sitting judge of the Supreme Court compromised the independence of the national judiciary. According to one report, the petitioner stated:

 As a matter of principle, selection of a sitting judge of the highest court of the land by the government creates a grave situation of conflict of interest and compromises the independence of the judiciary. The independence of the judiciary is part of basic structure of the Constitution of India. Selection to post like that of a judge of the ICJ, by its very nature, involves heavy lobbying on part of the government,” thepetition said. “Many of the important cases dealt by a judge of this court involve the Union of India as either the petitioner/appellant or as a respondent.

According to another:

Advocate Prashant Bhushan appearing for the petitioner, a LLM student, meanwhile argued that if Justice Dalveer Bhandari fails to obtain the position at the ICJ, it would be difficult for him to maintain his judicial independence henceforth as he would have sought assistance of the government for the appointment. The position will see an election for the post on April 27.

Referring to the nine-judge constitutional bench verdict in ‘Advocate on Record Association case’ which had ruled that judicial appointments shall not be influenced by the executive, Bhushan said the present case was like a case in which a sitting judge of the Supreme Court is offering himself a position to the post of member of the Lok Sabha while allowing political parties to lobby for him.

The petitioner seems to have challenged not the suitability of Justice Bhandari per se, but the practice of nominating sitting Supreme Court judges at all. We have had a lengthy and detailed debate, albeit from a slightly different perspective, on whether Indian Supreme Court judges are ideal ICJ judges here. It is notable that even though the Supreme Court dismissed the challenge, it suggested that the vires of the rules made by the government for the nomination process could have been challenged instead.

More after the result of the election!

India Lobbies for Justice Bhandari’s Election to the ICJ

With the election date of 27 April 2012 fast approaching, India has stepped up its efforts seeking support for the election of current Supreme Court Justice Dalveer Bhandari to the ICJ. As noted previously, the two nominees seeking election to the vacancy created by Judge Al-Khasawneh’s departure from the ICJ are India’s Justice Bhandari and Florentino Feliciano from the Philippines.

At home, earlier this month, India’s External Affairs Minister held a meeting with the relevant ambassadors and diplomats in Delhi to to make India’s “case for Justice Bhandari and to ask them to support India.”

Effort’s to garner support for Justice Bhandari are also underway in New York. A recent report notes that “on the possibility of Justice Bhandari’s victory, official sources said India has been lobbying hard for the support” and that India “appears confident of his victory”.

Indian Judge at the ICJ: Some Developments

I had noted earlier that India had nominated Justice Dalveer Bhandari for election to the ICJ. It now appears that the Philippines has nominated Justice Florentino Feliciano for election to the same vacancy. Justice Feliciano has served on the WTO Appellate Body. He was also an associate justice of the Supreme Court of the Philippines. He completed his LL.M. and JSD from Yale Law School. The official note on his nomination can be found here. The elections are scheduled for 27 April 2012.

On the topic of Justice Bhandari’s nomination, while browsing the Internet I recently came across this RTI request by Subhash Chandra Agrawal and the response by the MEA, Govt. of India. The RTI request seeks information about the nomination process as it is carried out in India. The response is basic and minimally revealing, repeating only the information available on the ICJ and PCA websites.

Update (25 March 2012): The Hindu has picked up on the story now, as well.

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!

Images from the Past: Nagendra Singh

[Every now and then, here at ILCurry, I will try and post about leading (South Asian, Indian, or any other I find some interesting information about) international law scholars/jurists/lawyers from the past. I hope to supplement the posts with images and videos that I come across.]

As I have mentioned previously, Nagendra Singh (1914-1988) was an Indian jurist who was a judge of the ICJ from 1973 to 1988, its vice president from 1976 to 1979, and its president from 1985 to 1988, till his death.

As the Wikipedia entry on him reveals, officially titled Maharaja Nagendra Singh, he was a member of the royal family of Dungarpur in Rajasthan and a career bureaucrat who, as an Indian Civil Service officer, served as secretary to the president, and in several other union ministries. Nagendra Singh was a member of the International Law Commission from 1967 to 1972, and was appointed a judge of the ICJ in 1973.

Some additional reading reveals that Nagendra Singh and Stephen Schwebel (a leading international jurist and a former president and judge of the ICJ, as well) were one of the first few pupils of Sir Hersch Lauterpacht at Cambridge. (See article on Hersch Lauterpacht by Stephen Schwebel here).

Here are two interesting files on Nagendra Singh:

1. From the album “Sir Elihu Lauterpacht’s Early Life” on the Cambridge site here:

Nagendra Singh receives the LL.M. at Cambridge. From L to R: Prof. Robert Jennings, Maharaja Nagendra Singh, Prof. Dennis Bailey, and Sir Elihu Lauterpacht (from the album "Sir Elihu Lauterpacht's Early Life" in the Cambridge Law online photo-gallery)

2. A Youtube video of a one hour interview with Judge Nagendra Singh at the UN in New York (originally aired on October 12 1986) where he talks about the ICJ, international law making at the UN, the nature of international legal order, what the ICJ can learn from the Supreme Court of India, and more (“… law of the sea was a very naughty problem” : ) ):

Hat tip to Aditya Singh for the video. 

Indian Judge at the ICJ?

According to a recent news report in The Hindu (here), India is looking to nominate a jurist for election to the ICJ to fill an Asian vacancy that will arise in February 2012 following the retirement of Judge Owada of Japan. The report notes that elections are expected to be held at the UN in September or October 2011.

India has thus far had three permanent judges at the ICJ: Sir Benegal Rau (1952-1953), Nagendra Singh (1973-1988 – Judge; 1976-1979 – Vice President; 1985-1988 – President), and Raghunandan Swarup Pathak (1989-1991). R. S. Pathak, the last Indian to be a permanent judge at the ICJ, was appointed to fill the vacancy arising from the demise of Nagendra Singh, and failed to get re-elected at the end of his term. On this, the report notes:

In 1991, India decided not to renominate Justice Pathak, who nevertheless entered the fray with the backing of Ireland. When the Irish government came under attack in the Dail from MPs who blamed the judge for approving, as CJI [Chief Justice of India], the “unjust” $470-million Bhopal gas disaster settlement with Union Carbide, Justice Pathak withdrew from the race. The Asian ‘slot’ was then filled by C.G. Weeramantry from Sri Lanka.

Apart from these permanent judges, several Indians have been appointed as ad hoc judges in specific disputes: M. C. Chagla (Portugal v. India), P. S. Rao (Malaysia/Singapore), and B. P. Jeevan Reddy (Pakistan v. India).

The Report goes on to outline the procedure that the Indian Ministry of External Affairs is likely to follow in nominating a candidate:

On receipt of a request from the National Group for seeking nominees, the Ministry of External Affairs will prepare for the elections. As a first step, the government is likely to identify a person it wishes to get elected. The National Group of India as well as National Groups of other friendly countries should also accept the preferred candidate of India as one of their nominees. There is no age restriction.

So, who is it going to be? A retired Supreme Court judge? P. S. Rao (he is also currently an arbitrator in a dispute between India and Bangladesh at the PCA)? An academician? A lawyer? Tips, speculation, and discussion are most welcome (remember, if it’s a scoop, you can always comment anonymously 🙂 ).