As Indian Wins Place on ITLOS, Government May Back Dalveer Bhandari for ICJ Again

Neeru Chadha topped the Asia-Pacific group in the vote for the International Tribunal for the Law of the Sea, which took place in New York on June 14.

Judge Dalveer Bhandari of the International Court of Justice (left) is all set to be renominated by India; Neeru Chadha, former head of the Ministry of External Affairs legal division, is in the fray for the International Tribunal for the Law of the Sea. Credit: ICJ

New Delhi: After getting its nominee elected to the International Tribunal for the Law of the Sea (ITLOS) on Wednesday, the Indian government is expected to re-nominate Judge Dalveer Bhandari to the International Court for Justice (ICJ), though official sources indicated to The Wire that “the process still has some way to go”.

The Indian nominee for ITLOS, Neeru Chadha, topped the ballot for the Asia-Pacific group in a keenly fought election for a seat on the tribunal which adjudicates cases related to the law of the seas. Chadha, with 120 votes, will be the first Indian woman to serve on the prestigious panel. The Thai candidate secured 86 votes, the Lebanese judge who was seeking re-election got 60 while the Indonesian nominee won 58 votes.

Though the ITLOS election is not related to the procedure for nominating and electing judges to the ICJ, Indian officials wanted to put Chadha’s win behind them before declaring their hand for the world court.

An official familiar with the process told The Wire on Tuesday that Bhandari’s re-nomination has the backing of   external affairs minister Sushma Swaraj and Justice (Retd.)  G.T.  Nanavati, who is part of the selection panel. But since Bhandari was initially picked by the erstwhile UPA government and has also courted controversy, another official said the decision could not be considered final till all the formalities were completed. The last date for filing nominations is July 3, which is barely two weeks away.

In formal terms, the ICJ nomination will have to be submitted through India’s national group at the Permanent Court of Arbitration. The ‘national group’ comprises members nominated by the country. The current members of the Indian national group are former Chief Justice H.L. Dattu, Nanawati, attorney general Mukul Rohtagi and senior lawyer Harish Salve. All of them had been nominated by the NDA government in January 2015.

There is no reason why India’s nominee has to be a retired justice of the Supreme Court or any other court. Article 2 of the ICJ statute merely says that its judges be selected from among persons 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.”

It is not uncommon for other countries to send professors of public international law as their nominees to the ICJ. In 2012, the suggestion was mooted that a top Indian academic expert in public international law like V.S. Mani (who passed away last year) or Yogesh Tyagi (currently vice chancellor of Delhi University) be sent as India’s nominee but  the Manmohan Singh government ended up choosing Bhandari, who was then a sitting judge of the Supreme Court.

If Bhandari’s name is again forwarded to the UN, the process will not have been without its share of twists and turns. The Wire has learned that other sitting judges who were also being considered. The names of at least two sitting Supreme Court justices – including Chief Justice J.S. Khehar – were being circulated through the grapevine. It is not clear if the Modi government is looking at academic law experts.

Bhandari was nominated to the ICJ in 2012 to fill a mid-term vacancy in the court that arose due to the resignation of Jordanian judge, Awn Shawkat Al-Khasawneh. Bhandari’s nomination at a time he was a sitting judge cast a shadow on his judicial independence since he was required to sit in judgment over cases to which the government of India was a party even as he was dependent on the same government for lobbying other countries in the run up to his election as an ICJ judge. His current term ends in February 2018.

India is coming to the current ICJ race late as France, Brazil, United Kingdom and Somalia have re-nominated their sitting members, who have already begun campaigning. So far, the only nomination for the Asian seat is Lebanon’s permanent representative to the UN, Nawaf Salam.

Elections will be held later this year, with simultaneous, but independent, voting in the UN General Assembly and Security Council. In order to be elected, candidates must receive an absolute majority – that is, at least 97 votes in the UNGA and 8 votes in the UNSC. That’s why there are often multiple rounds of voting before all the vacant ICJ seats are filled up.

The ICJ, which is the UN’s principal judicial organ, is currently adjudicating India’s case against Pakistan for violating international law by imposing a death sentence on former Indian naval officer Kulbhushan Jadhav without affording him the benefit of consular visits by Indian diplomats. 

After the ICJ accepted India’s appeal for provisional measures that effectively stayed implementation of Jadhav’s sentence, Bhandari had given an interview to an Indian newspaper in which he described the court’s May 18 order as a “great diplomatic victory for India”. While judges are nominated by countries, they are not meant to serve as national representatives in the world court. Therefore, the interview had not gone done well in some quarters in the government at that time, as it was felt that it could give ammunition to Pakistan to ask for his recusal.

If Bhandari is elected to the ICJ, Pakistan would probably ask to exercise its right to nominate an ad-hoc judge to the bench hearing the case, as one of the 15 members of Court would be an Indian national. This is spelled out in the ICJ statute’s article 31 which states, “If the court includes upon the bench a judge of the nationality of one of the parties [to a dispute], any other party may choose a person to sit as judge”.

Voting for the Law of the Sea Tribunal

An important part of the Indian calculation for finalising its ICJ nomination was the simultaneous race for the 21-member ITLOS, with the states parties to the United Nations Convention on the Law of the Sea (UNCLOS) having scheduled their vote for the seven judges for Wednesday afternoon.

Neeru Chadha, the Ministry of External Affairs’ first woman chief legal officer, will replace P. Chandrashekhara Rao, who steps down this year after 21 years as a judge at the tribunal. Chadha was in a fight for one of two vacant seats for Asian countries which were up for grabs in this election.

The other three other Asian candidates in the fray were Joseph Akl (Lebanon), Arif Havas Oegroseno (Indonesia) and Kriangsak Kittichaisaree (Thailand). The Lebanese candidate had been in ITLOS since 1996. In his official resume submitted with nomination, Kittichaisaree specifically mentioned that no citizen from UNCLOS’s southeast Asian state parties have yet been elected to serve at ITLOS since its inception.

India had been hoping to secure over 120 votes for Chadha to win her seat at ITLOS based on its lobbying efforts, an estimation that proved correct on voting day.

Since Chadha’s nomination was announced last year, Indian diplomats had been lobbying to tie up votes, which as per any other international election, are usually secured on a quid-pro-quo basis. That’s why, sources claimed, since many of the voting swaps were already finalised, India was moving cautiously on its ICJ nomination as the timing between the two elections was too close and required more persuasive diplomacy.