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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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 🙂 ).