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 na├»ve. 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.)
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