External Affairs

Six Weeks to Go and India Has Yet to Take a Call On Its International Court of Justice Nominee

The fact that three vacancies – at the ICJ, ITLOS and the Continental Shelf Commission – have arisen at the same time makes the diplomatic task more complex

The Chinese delegate casts his vote during the 2012 election at the UN for a new judge for the International Court of Justice. Dalveer Bhandari of India defeated a contender from the Philippines. Credit: UN/Rick Bajomas

New Delhi: With the deadline for nominating judges to the International Court of Justice just six weeks away, the Modi government has still not made up its mind about whether it will seek a second term for the sitting Indian judge, Dalveer Bhandari, or propose a new name for the vital slot.

While India has always considered it important to have a judge on the bench, the salience of the world court has increased dramatically at the present time because of the case the country is fighting against Pakistan over the death sentence imposed on the former Indian naval officer Kulbhushan Jadhav.

Judges at the principal judicial body of the United Nations normally serve a nine-year-term. Bhandari, however, was elected against a vacancy in 2012 arising from the mid-term resignation of a sitting judge from Jordan. Therefore, he has a shortened term which ends in February 2018.

The last date for filing nominations is July 3 and India is the only country among those whose judges’ seats will be up for grabs to have not already made its choice clear.

According to sources in the Ministry of External Affairs, France, Brazil, Great Britain and Somalia have all re-nominated their sitting judges – Ronny Abraham, Antônio Augusto Cançado Trindade, Christopher Greenwood and Abdulqawi Ahmed Yusuf, respectively. Most of them have also apparently started the process of lobbying for re-election, with voting to be held in the UN General Assembly New York in November this year.

The Indian government, however, is still taking its time and has yet to decide when to declare its candidate for the ICJ.

While judges on the world court are nominated by their respective governments, they are not meant to serve as ‘national’ representatives on the bench. However, the presence of an Indian judge obviously provides the India side a measure of comfort at a time when the ICJ is considering India’s plea that Pakistan violated international law by by sentencing Jadhav to death with following proper process. A military court in Pakistan last month convicted Jadhav of espionage and sentenced him to death. New Delhi denies the allegations and say that the former naval officer had been kidnapped from Iran and then been detained and tried in contravention of the Vienna Convention on Consular Relations under which India should have been given consular access to its citizen.

Last week, the ICJ accepted India’s urgent plea for provisional measures and ordered Pakistan to stay the execution of Jadhav till the court’s final judgement is pronounced.

Judge vs judge

With the ICJ still holding consultations for working out the timeline for written submissions and oral hearings, it is expected that the proceedings in the Jadhav case may stretch to 2-3 years – the average time that contentious cases usually take before the court. The Pakistani newspaper Express Tribune reported on Tuesday that Islamabad had asked the ICJ registrar to expedite the matter so that the first hearing takes place within the next few weeks. This, say analysts familiar with the ICJ workings, seems unlikely for now.

File photo of Dalveer Bhandari being sworn in as a judge of the International Court of Justice in 2012. His terms comes to an end in February 2018. Credit: UN/Frank van Beek

As a party to the case, Pakistan will have the right to nominate an ad-hoc judge for the duration of the proceedings since one of the 15 judges in an Indian national.  As per article 31 of the ICJ statute, “If the court includes upon the bench a judge of the nationality of one of the parties, any other party may choose a person to sit as judge”.

If Pakistan, in all likelihood, installs an ad-hoc judge and there is no Indian judge at theICJ after February 2018,  then India could also demand to have its own an ad-hoc judge.

So far, India has had four judges on the ICJ since 1952 – Benegal Narsing Rau, Nagendra Singh and Raghunandan Swarup Pathak. Out of them, Singh had longest tenure of 15 years between 1973 and 1988.

“It is not just about the Jadhav case. Why should we give up a seat at ICJ and go unrepresented there,” said an MEA official.

The world court has 15 judges with nine-year terms, with five seats up for elections every three years.  Elections to the ICJ are held during the annual autumn session of UNGA.

The usual allocation for various geographic regions is three seats each to the Asia-Pacific and Africa, two seats to Latin America and the Caribbean, two seats to Eastern Europe and five seats to Western Europe and other states. Besides India, Japan and China have also judges in the ICJ.

Diplomatic sources told The Wire that the only nomination for the Asia-Pacific group seat which falls vacant in February 2018 is Lebanon’s permanent representative to the United Nations, Nawaf Salam.

As per the ICJ statute, candidates should be “persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognised competence in international law.”

Bhandari, a sitting Supreme Court of India judge at the time, was nominated by the erstwhile UPA government in a move that legal commentators at the time said ended up compromising his judicial independence. If the Modi government decides not to continue with him, it will have to decide on an alternative before July 3, 2017. According to the legal grapevine, some of the names under consideration for India’s candidate include Chief Justice J.S. Khehar, who will retire from the Supreme Court in August 27, 2017,  and Justice Dipak Mishra, also a sitting Supreme Court judge. External Affairs minister Sushma Swaraj is apparently looking at other names too.

If it is made, the choice of a sitting judge will once again raise questions about the independence of the nominee, who, unless she or he resigns, will be expected to sit in judgment over cases involving the government even as the same government lobbies on her or his behalf for a nine-year term on the ICJ.

When Bhandari was elected in 2012, he won 122 votes in the UN, against 58 secured by Florentino Feliciano of the Philippines.

According to South Block sources, there was no great enthusiasm within the government to push for Bhandari’s renomination to begin with. The comments he made in an interview about the ICJ’s decision in the Jadhav matter have also raised eyebrows in The Hague and New Delhi, as judges at that level never comment on judgments they are a party to. Pakistani legal analysts too have taken note of Bhandari’s public comments on the case – especially his statement that the court’s May 18th order was “a great diplomatic victory for India” – and may well ask for his recusal. If India does not re-nominate Bhandari, of course, Pakistan obviously will not be able to ask for his recusal.

A complex dilemma for India

Elections to UN posts require delicate negotiations which are based on commitments made by states on a quid-pro-quo basis. According to one official who was aware of India’s lobbying efforts, India has already made several reciprocal tie-ups for the forthcoming election to another UN legal body – the International Tribunal for the Law of the Sea (ITLOS) – and might thus have limited leeway in garnering the requisite number of  votes for another election.

In less than a month, India will attempt to retain its seat at ITLOS to ensure there is an Indian presence after P. Chandrashekhara Rao, who has spent 21 years as a judge at the Hamburg-based tribunal, steps down later this year.

Indeed, on September 30, the term of office of as many as seven members of the 21-member court – which adjudicates disputes arising from the UN Convention on the Law of the Sea (UNCLOS) – will come to an end. This includes the 81-year-old Rao, who was India’s nominee at the very first election in 1996, and has been re-elected twice till now.

File photo of Neeru Chadha, who has represented India at the ICJ in the past. Credit: ICJ

This time around, India has nominated Neeru Chadha, who retired as additional secretary (legal and treaties) at the MEA last year. She will be contending for one of the two Asian seats which fall vacant this year.

The election will take place during the meeting of the state parties to UNCLOS from June 12 to 16.

There is another election on the agenda of that meeting – for the 21 members of  the Commission on the Limits of the Continental Shelf (CLCS) – but the MEA has decided not to field any candidate this time around, much to the consternation of the Ministry of Earth Sciences, whose officials have always had a seat at the UN scientific body that decides which part of the seabed beyond a coastal state’s 200 nautical mile exclusive economic zone limit can be exclusively mined by that country.

In her official resume submitted for the ITLOS nomination, Chadha described herself as having the “distinction of being the first Indian woman to become the chief legal advisor” in the MEA.

Chadha has been India’s ‘agent’ – or legal pointperson – at the ongoing Enrica Lexie case before an arbitral tribunal of the Permanent Court of Arbitration (PCA). She was also agent at the case involving the delimitation of the maritime boundary between Bangladesh and India, and co-agent at the Kishenganga arbitration concerning the Indus Waters Treaty, both of which were handled at the PCA.

The former MEA legal officer also appeared before the ICJ as India’s co-agent in the case the Marshall Islands brought against India and other nuclear weapons states for not pursuing nuclear disarmament sincerely.

Timing is everything

Diplomatic sources told The Wire that the government would have a better picture of India’s ability to remain on the ICJ after the ITLOS election is completed mid-June. India would then have two weeks to file its nomination for the world court

Chadha will be standing against Joseph Akl from Lebanon, who is up for re-election and had been in the Tribunal since 1996. The other two Asian candidates are from Indonesia and Thailand.

By convention, the five permanent members of the Security Council always get to send a judge to the ICJ but the battle for the remaining seats can often be bruising and unpredictable. According to the ICJ’s statute, judges are elected by “coordinated actions of both the Security Council and the General Assembly, and winning candidates must secure an absolute majority in both bodies. Elections can be a long-drawn out affair, with several rounds of simultaneous but separate voting.

The fact that India will be in direct contention against Lebanon for both ITLOS and the ICJ adds to the complexity of the diplomatic challenge that the country will face at the UN.

Last year, some diplomatic capital was expended on the election of Aniruddha Rajput a young lawyer who was the Modi government’s surprise nominee for the International Law Commission. Rajput, with links to the RSS, received his PhD a few months before the nomination but handily defeated weightier candidates from other Asian counties after the MEA pulled out all the stops to get him elected.