Every few years, a political circus convenes at the United Nations to elect judges of the International Court of Justice. The process is politicized, and a failure to admit this would be naïve. At the same time, a running feature – common to all judges of the exalted ‘world court’ – has been a background, in the worst, and
excellence, in the routine, in the field of international law, the substrate of
the Court’s deliberations. Take the most recent addition to the Court’s
celebrated list of members, Mr. Giorgio Gaja of Italy – previously an ad-hoc
judge of the Court, member of the International Law Commission for two terms, Professor
of International Law at the University of Florence and currently, Special
Rapporteur for the second generation of the ILC’s work on responsibility.
could reiterate the background of each judge presently at the Court to
demonstrate a general standard of
excellence in international law matters, but suffice it to say that the Statute
of the Court itself labels them as the ‘highly
qualified publicists’ (Article 38(1)(d)), accordingly rendering
precedential value to their dissents.
has had its fair share of representatives at the ICJ; being one of twelve
states with three of more judges at the Peace Palace. We were given the chance
to build upon this impressive record a few months back, as political turmoil in
Jordan led to the recall of Judge Al-Khwasaneh. This empty slot was filled by
the General Assembly and Security Council in accordance with Article 4 of the
having offered its support to Jordan in the previous elections, was very well-placed
to nominate a candidate to the ICJ, and so it did: Hon’ble Mr. Justice Dalveer
Bhandari of the Supreme Court. Before I attempt to demonstrate the absolute
absurdity attached to this choice, a little context would be helpful.
for the vacant post were invited by Security Council Resolution 2034 (2012),
allowing recommendations to be made by National Groups in the Permanent Court
of Arbitration. The Indian delegation at the PCA currently comprises retired
Judges Kania and YK Sabharwal, along with senior advocate B. Sen (who
themselves are required to have displayed a ‘known competency in matter of international law’). The final
decision is left to this delegation, although Item 38 of the Third Schedule
(under Rule 8) of the Government of India (Transaction of Business) Rules
allows the Prime Minister’s Office to submit names for consideration. In this
case, the PMO suggested Mr. P. S. Rao – former ad-hoc judge at the ICJ in the
Malaysia-Singapore territorial dispute, member and Chairman of the
International Law Commission, ex-chief of the Law and Treaties Division in the
Ministry of External Affairs (as also principal legal advisor to that
Ministry), member of the Insitut de Droit Internationale, Special Rapporteur
for the ILC’s work on liability for a period of 9 years, agent for India at the
ICJ in 2000, consultant for the WTO and so on.
to my shock, the Indian delegation at the PCA chose HMJ Bhandari for the post, overlooking Mr. PS Rao. At first
instance, I told a friend, hoping to share my dismay. I was startled (at the
time, though naively-so in retrospect) with his reply: “This is India– what did you think”. In my optimistic insistence
that this was not (and could not) be
the case, I began to rationalize this decision. Here’s what I found:
Sen’s justification was this: “Looking at various criteria such as experience; a
person who will be easy to get on international circle; good health
and hard-working, we found Justice Bhandari the most suitable candidate
among those who were interested”.
He went on, maintaining the standard of coherence displayed in the earlier
remark, “I have known him for many years,
I knew he was a capable man”.
response to an RTI, the MEA had this to say: India’s “lobbying efforts and electoral strategy is essential a confidential
process”, and thus, the question of why
HMJ Bhandari was chosen lies outside the scope of the Act (CBSE v.
Bandopadhyay, 2011, SC).
Bhandari’s background in international law and I quote from his profile on the
Supreme Court website, which, due to the MEA’s reluctance remains our only
source of information. (NOTE: appending the world ‘international’ to a domestic
law project does not transform it into international law):
Graduating in Humanities and Law on an international
Worked on an International Project
“Delay in the Administration of Criminal Justice in India” sponsored by the
Executive Member of the International Law
Association, India Chapter since 1994. Chairperson of the Delhi Centre of the
International Law Association for several years.
President, India International Law
A few references to Lectures delivered on
Intellectual Property law, in “international fora”.
discard points (a), (b) and (e) summarily. Points (c) and (d) do seem to provide some justification for his nomination, but a closer look is more
revealing: In this capacity as chairman and member of the ILA (a renowned
institution engaging in the development of international law), HMJ Bhandari has
neither researched upon, or written any substantive topic, discussion or paper
on questions of international law through his tenure; although his count of
Opening Speeches and Chief Guest mentions does merit a mention.
fact, post-election, the Press Release by the ICJ (available here)
itself, fails to list any reference to work done in the field of international
law in a strong 9 page curriculum vitae. Instead, it includes references to
Justice Bhandari’s judgment in Taj,
several PIL matters dealt by him, an exhaustive list of lectures, and so on.
everything before us, the PCA delegation’s decision shocks me. We can always
entertain a rationalizing exercise, to attempt to find a reason to defend HMJ
Bhandari’s choice. But with an alternative in the frame of Mr. PS Rao, the
futility of that exercise is evident. (this is capped by the MEA’s indefensible
remark that a judge at the ICJ is to “above-all,
protect national interests” (MEA, No. UI/551/06/2012)).
pains to second-guess the choice of eminent jurists such as those currently
occupying positions in the Indian PCA delegation, but the facts before us leave
me no choice. For how else could one explain this absurdity? Perhaps, and I
have encountered two particular replies frequently, this was a strategic
decision and the final choice was based on considerations of ‘national
interest’; or alternatively, the ‘Justice
Bhandari is a really smart judge. He is very capable’ line of argument. I
will explain why neither of these views is tenable: First, I do not deny the importance of political considerations, or
larger questions of national interest. This, however, simply does not apply to
this case because one, the decision here is made by the PCA Delegation
(themselves in the dark about such national secrets as may influence these
decisions), and not by the Government; two, the PMO itself recommended Mr. PS
Rao; and finally, a Judge at the ICJ is not a national representative, but
rather an independent legal functionary (a sequitur
the MEA has sadly lost sight of).
Justice Bhandari’s legal acumen. He is indeed a brilliant judge, a Judge of the
Supreme Court of India no less. Neither am I in a position to comment on a
Judge’s standing. Nomination to the ICJ, however, requires a smart and
distinguished lawyer, a lawyer such as Justice Bhandari, who is ‘eminently qualified’ in questions of
international law. While his standing in domestic law is undeniable, Government
decision must be informed by reason and demonstrable rationale. The fact that
Mr. Bhandari is in good health, or is hard-working, or that Mr. Sen has known
him for several years as a capable man, quite simply does not meet the
law is a precise endeavour they say, and the same applies here – 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! My tone, here, is
not sarcastic, but one of exasperation, one that is repulsed by the
closed-mindedness of the decision making process.
set and done, I was asked a few days back: ‘Why
do you care! As long as India has someone there …’ The question, here, is
not just consequential – but rather, a thought that applies equally to all
sectors of bureaucratic decision making in India; of focussing on the man,
rather than his actions; his name, rather than his credentials; the form,
rather than the substance. What strikes me is that such considerations are so
overtly evident in the upper echelons of power, in decisions that expose India
to the world.
nomination was not uncounted though, with the Philippines nominating its Judge
an international law jurist (to no one’s surprise, but perhaps the Indian PCA
delegation) having chaired the WTO Appellate Body, and participated in several
awards at the ICSID, ad-hoc investment arbitral tribunals amongst similar
achievements. Oddly, I was glad that the Philippines had nominated an expert.
In fact, a part of me hoped (against hope) that the Indian nominee is not
elected, in the hope that this would reform, to whatever extent, the flawed
fundamentals of decision making.
said, the process is political, and the General Assembly and Security Council
were voting for the Indian candidate,
rather than the particular individual. Indeed, given India’s recent resurgence in
the international political sphere, the Indian candidate was extremely
well-placed, and the record voting margin (122 in the GA, 13 in the SC) stands
testament to this fact. In that sense, my post here serves no consequentialist
purpose – but rather, is a thought of what could have been.
Justice Bhandari the best (as would all Indians), and look forward to reading
his Separate or Dissenting Opinions. At the same time, his future actions as an
ICJ judge should not exonerate the PCA delegation for its choice, and neither
should his election.
fact, in all probability, what compelled the delegation to disregard Mr. PS
Rao’s nomination will remain a mystery. The only hope remains that this acts a
wake-up call for the government, to introduce some coherence in its functioning;
to infuse some logic into this madness.