Monday, April 30, 2012

ICJ Nomination of Justice Dalveer Bhandari: Whither Indian Decision Making

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.


I 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.  

India 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 ICJ Statute.

India, 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.

Candidates 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.

Much 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:

1.    Mr. B. 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”.
2.   In 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).
3.   Justice 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):

a.    Graduating in Humanities and Law on an international scholarship.
b.    Worked on an International Project “Delay in the Administration of Criminal Justice in India” sponsored by the United Nations.
c.    Executive Member of the International Law Association, India Chapter since 1994. Chairperson of the Delhi Centre of the International Law Association for several years.
d.    President, India International Law Foundation.
e.    A few references to Lectures delivered on Intellectual Property law, in “international fora”.

I will 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.

In 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.  

With 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)).

It 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).
Second, I do not doubt 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 standard.

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.  

But all 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.

India’s nomination was not uncounted though, with the Philippines nominating its Judge Feliciano – 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.

As I 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. 

I wish 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.

In 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.
(Guest Post by Raag Yadava, who is a student at the National Law School of India University, Bengaluru.)

8 comments:

Prithvi said...

Art. 38(1)(d) of the ICJ Statute doesn't actually appear to say anything about the level of international legal acumen required of its judges. The clause lists the following as the sources of international law which the Court can follow: "judicial decisions *and* the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law." One can plausibly read this clause to allow for a distinction between judicial decisions and the writings of scholars, since "judicial decisions...of the most highly qualified publicists" makes no sense - presumably the job of publicists is publishing, and not deciding. Perhaps scholarly commentary on 38(1)(d) clarifies the issue, but on a purely textual analysis, it doesn't seem that the Statute of the ICJ requires high qualifications from its judges.

Additionally, given that Art. 38(1)(c) requires that judges be able to recognize the "general principles of law recognized by civilized nations," it might be a good idea to have at least a few people with highly developed municipal law (and comparative law) knowledge on the ICJ. Justice Bhandari's international "experience" might well qualify him for this sort of work; I don't know enough about his judicial decisions to comment.

If India were nominating Sachin Tendulkar to the Court, I think a valid objection of this sort could be made; but as things stand, I'm not sure how serious of a transgression this particular nomination is.

Shivendra said...

@ Prithvi-A comparison of Justice Bhandari's expertise in International Law with the other judges in ICJ will help you in understanding what Raag is trying to say. (just have a look at the ICJ website and probably compare his credentials with Tomka/Greenwood/or anyone else!). It is not like nominating Sachin Tendulkar, but anyone who has read/knows International law will understand how illogical this is. It is like making someone who specialises in criminal law, the head of a Tax Tribunal. As an Indian, I am happy (only because an Indian won) but this just shows how things work in our country.

@ Raag- Great post Raag.

Prithvi said...

The fact that none (or few) of the other judges currently on the ICJ have much municipal law experience should only strengthen the case for Justice Bhandari's nomination. Given that municipal law is regarded as an important source of international law for the Court to rely upon in deciding the cases before it, surely having a judge who is an expert in comparative law (which is how many accounts describe Justice Bhandari) is a good thing for the Court?

The tax tribunal analogy doesn't really work in this case. As far as I can recall, those who officiate on tax tribunals aren't *explicitly* required to consider criminal law as an important source of law in handing down their decisions.

Prabhu Rajadurai said...

A Judge need not be a ‘man of law’ but requires to be a ‘man of discretion’. Justice Bhandari is not invited to ICJ to deliver lectures but to judge cases. Even a layman, if properly assisted by Counsels can deliver outstanding Judgments. The decisions of the Tax Tribunals are overturned by the Judges of the High Courts and Supreme Court, having little experience in tax laws. If the fallacy of this argument is accepted, the students of the National Law Schools alone are to be considered to be elevated to the benches of our High Courts!

Deepaloke said...

Excellent piece Raag.

devil said...

Actually while having a conversation with Arghya Sengupta today, I remembered that unfortunately I had never bothered to comment on a grave factual error in this article. The blatant errors in the article should be pointed out for certain. I would quote here the following paragraph from the above article:

"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."

While writing an article either one can express an opinion or provide factual details and while providing what the law states we cannot commit errors like a layman. The relevant part of the specific mandate of the ICJ with respect to appointment of Judges is as follows:-
"Judges must be elected from among 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 recognized competence in international law."

I stress on the word "OR" which clearly signifies that nowhere has the ICJ ever required a Judge to have brilliant qualifications in the field of International Law. I requote from the above article- "The law is a precise endeavour they say, and the same applies here." - and I dont think I need to clarify on this aspect.

Furthermore, it is claimed later "The only hope remains that this acts a wake-up call for the government."
I wonder why the Govt. is being blamed when earlier it is specifically stated that the PMO had not nominated J bhandari's name for the said position. Moreover, as per ICJ mandate again, the Govt. has no role to play in the said nomination. I quote the relevant part again for clarification:
"All States parties to the Statute of the Court have the right to propose candidates. These proposals are made not by the government of the State concerned, but by a group consisting of the members of the Permanent Court of Arbitration (see History) designated by that State, i.e. by the four jurists who can be called upon to serve as members of an arbitral tribunal under the Hague Conventions of 1899 and 1907. In the case of countries not represented on the Permanent Court of Arbitration, nominations are made by a group constituted in the same way."

Legally speaking, blaming the govt. is an erroneous exercise even while expressing a personal opinion.
This article is a good personal opinion of an international law student but suffers from errors if it was to be considered a legal opinion.

Raag said...

@Devil. Thanks for the comment. I was told of this today itself, so I apologize for the delayed response.

The ICJ statute does indicate that any one of the qualifications must be met as a minimum threshold. I think you will agree with me that Justice Bhandari qualifies under the first, while Dr. Rao would clearly fit within both. My point, however, is not to question the legality of the appointment, or test the floor minimum, but to compare. While the Statute does not, at any point, state that the individual must have a “brilliant knowledge” of international law, given that international law is indeed the substrate of the court’s deliberations, should we not – as a best practice – appoint someone who does indeed have such knowledge?
I agree with your second comment, and perhaps I should clarify my comments. The nomination was made by the PCA delegation, and the drafters of the Statute required them and not governments to make the nomination “so as to enhance the professional calibre and independence of judges.” (AJIL, Vol. 94(3), 2000, at 579). In fact, for that very purpose, Article 6 notes that “[b]efore making these nominations, each national group is recommended to consult its highest court of justice, its legal faculties and schools of law, and its national academies and national sections of international academies devoted to the study of law.” Since you relied on Article 2 earlier, it seems only apt that the delegation also meets the practice recommended in Article 6. Unfortunately, no such consultations were conducted.
Why I refer to the Government, however, is because the nomination to the PCA delegation is, in other countries (and from them we must learn), informed in large part by the knowledge that they will be making nominations to the ICJ if the opportunity arises. An ICJ judge, though independent, inevitably reflects on the nation and the status of international law scholarship there, and keeping this in mind, the Government should take its nomination to the PCA delegation (and thus, the ICJ nomination) more seriously. The United States, in nominating Justice Burgenthal, for example, conducted extensive consultations and recognized the need to nominate a scholar in the area. (the AJIL article cited above narrates the process in the United States)
Again, to clarify, I am not questioning Justice Bhadari’s nomination in vacuum (that is to say I am not saying that he is not qualified). Rather, because this necessarily has to be a comparative exercise, with the most suited nominee emerging as the choice, I am only asking this: in what way was Justice Bhandari more suited to this position? Some objective distinction, or an objective fact susceptible to subjective interpretation by the PCA delegation (to whose interpretation I would defer), must exist, but I fail to find one. In fact, another comment has noted that a judge is a man discretion and not only law. I agree. In fact, Dr. Rao has judged at the ICJ before and is currently sitting on an UNCLOS arbitration panel between India and Bangladesh only reinforces my claim.

Naman Joshi said...

What you are pointing out Raag is not a restricted phenomenon. In general there is a reluctance to choose and elevate academics and people from outside the established hierarchy to such positions in India. If anything the composition of the Supreme Court should give you an idea. Not one academic has ever made it to the Court, even though some would argue, quite successfully if I may add, that Prof. Madhava Menon is as good if not better than a lot of Supreme Court judges - sitting and retired. Same logic works in our choice of Chairmen of statutory bodies like the Press Council, the NHRC etc. Moreover, this phenomenon is not restricted to India per se. While Elena Kagan may have made the Dean of Harvard Law School Dean to Supreme Court Judge journey, Harold Koh didn't. Considering Justice Bhandari had served with distinction on the Bench whereas P.S. Rao's service - admirable as it may be - was not 'evaluated' so to speak in a organized hierarchy, it comes as little surprise that the former was elected. Unless these elections are based on the whims and fancies of the executive - which has it's own disadvantages - this seems to be a safe way. Of course this is in no way disagreeing with your premise that Indian candidates as a whole lack the sort of depth candidates from other countries show. Simma. Gaja. Tomka. Yusuf. Hopefully soon, Crawford.