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? : )

Korean Professor Appointed to WTO Appellate Body

According to latest reports, Prof. Seung Wha Chang, a professor of law at Seoul National University, has been appointed as a member of the WTO Appellate Body. Prof. Chang will fill in the vacancy arising out of the resignation of Mr. Shotaro Oshima, a Japanese national and diplomat who resigned from the AB on January 7. Here is his unofficial biography from the Harvard website:

Seung Wha Chang has been a Professor of Law at Seoul National University School of Law since 1995 and has taught international trade, international business transactions, and international arbitration. Professor Chang also taught as Visiting Professor of Law at Harvard, Yale, Stanford, NYU, Duke, Georgetown, UCLA, NUS and other law schools. Prior to teaching, he practiced at Covington & Burling and was a Judge of the Seoul District Court. Professor Chang served as a WTO Panelist for seven highly profiled dispute settlement proceedings including US-FSC and Canada-Aircraft II. He is one of the leading arbitrators in the Asia-Pacific region and regularly serves as an arbitrator (sole, co-arbitrator or chair) for ICC and other leading arbitral institutions. Professor Chang is currently Co-President of APRAG and also serves as Chairman of Korean Council for International Arbitration and Member of the ICC International Court of Arbitration.

ILCurry wishes Prof. Chang the best for his term at the AB. Our best wishes also to Mr. Oshima for a healthy and fulfilling post-AB life!

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!

New WTO Appellate Body Members Appointed

Two new Members, an Indian and an American, were recently appointed to the WTO Appellate Body, the apex adjudicatory body for inter-state disputes under WTO law. The WTO website notes:

Dispute Settlement Body (DSB) appointed on 18 November 2011 the following two new members to the seven-member Appellate Body: Messrs Ujal Singh Bhatia of India and Thomas R. Graham of the United States for four years commencing on 11 December 2011.

Mr. Bhatia and Mr. Graham replace AB Members Ms. Lilia Bautista (Philippines) and Ms. Jennifer Hillman (US), whose terms are set to expire soon. The biographical note for Mr. Bhatia, a retired Indian bureaucrat and diplomat, is available here. Mr. Graham’s background is detailed here and here.

ILCurry thanks Ms. Hillman and Ms. Bautista for their contribution to WTO dispute settlement, and wishes Mr. Bhatia and Mr. Graham the best for their terms.

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 🙂 ).