With the deadline for nominating judges to the International Court of Justice fast approaching, the Modi government has still not decided about giving a second term for the sitting Indian judge Dalveer Bhandari, or proposed a new name for the all-important vacancy. Dalveer Bhandari’s term ends in February 2018.
The International Court of Justice (ICJ) located at The Hague has always had an important Indian presence. India has had four judges on the ICJ since 1952 – In the past, Sir Benegal Rau (1950s), Dr. Nagendra Singh (1973-88) and Justice R.S. Pathak (1988-90), former Chief Justice of India, had served as Judges of the ICJ. Two persons served as ad hoc Judges namely: M.C. Chagla in a dispute with Portugal in the 1950s and Jeevan Reddy in a dispute with Pakistan in 2002.
The International Court of Justice (ICJ) located at The Hague has always had an important Indian presence.
It must be stressed here that the court is in international limelight as Pakistan and India lock horns over the fate of Kulbushan Jadhav. Last week, the ICJ accepted India’s plea for a stay order to be given on Pakistan’s execution of Jadhav till the court’s final judgement is pronounced.
The ICJ is the principal judicial organ of the United Nations. It consists of 15 Judges who serve for nine years. Out of 15 Judges, the distribution is 3 for Africa; 2 for Latin America; 3 for Asia; 5 for Western Europe and other States and 2 for Eastern Europe. If the Indian replacement wins nomination he will be at the ICJ for the next 9 years, which does not bode well for Pakistan in the Yadev case or in any other future case against India.
While Judges are not supposed to serve as national representatives on the bench, it gives a fair degree of comfort to countries who move the court knowing that one of its nationals is a judge. As the case is more likely to linger on, the Modi government has to decide soon.
Read more: Read the ICJ Verdict for yourselves
Will Bhandari be given another run?
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 juris consults of recognized competence in international law.”
While, Delhi doesn’t seem gung-ho in sticking with Bhandari; it certainly wants to maintain a robust presence in the body. Certainly, a seat at any international body is reflective of a nation’s clout in the international community.
In an interview with the Indian Express he stated, “hugely satisfying interim pronouncement which is a great diplomatic victory for India.”
However, Bhandari may not make the cut after having served the bench since 2012. There are a few reasons for it. His remarks visibly in favor of India after the interim order last week raised a lot of eyebrows regarding his impartiality amongst international countries that have to vote for him. He boisterously termed the decision as India’s diplomatic victory. In an interview with the Indian Express, a day after the decision came out, he stated it was a “hugely satisfying interim pronouncement, which is a great diplomatic victory for India”
Last year, speaking ahead of the ICJ’s 70th anniversary Justice Bhandari said: “India is already playing a significant role in framing of international laws and conventions. It would be desirable that a much greater role be played because international law and conventions are becoming increasingly important for us, such as nuclear policy. More than ever before in human history, we share a common destiny.”
He was appointed to this position by the UPA government and his frequent references to Indian state policies as an ICJ Justice has created disquiet amongst other Justices and countries. This may dissuade the Modi government from continuing with him, especially given that the high voltage Jadhav case will be fought out next year, where they would not like to be seen as winning because they had an Indian partial judge.
So while, India would like to steer clear of allegations of being favored, but this will not stop them from proposing a name for this seat in the UN court.
Article 31 of the ICJ’s statute states that if the panel includes “a judge of the nationality of one of the parties, (the other) party may choose a person to sit as judge”.
By not re-nominating him, India could automatically baulk Pakistan’s chances of seeking him to recuse from the case as is their right to do so. However, India would have to decide on the new candidates soon. The deadline for submission of names is July 3. India is mulling who to select from sitting judges of the Indian Supreme Court, something which could affect the independence of the nominee once again.
India also to Nominate names for 2 other international bodies
This year, India was also slated to fill two other bodies with its nominees, the International Tribunal for the Law of the Sea (ITLOS) and Commission on the Limits of the Continental Shelf (CLCS). However, India has as a strategic decision decided not to nominate anyone for the latter – whose nomination date was March 7 2017. It was running against Lebanon for both positions – ICJ and ITLOS – and decided that it would prefer to nominate someone for the ITLOS and not spend time lobbying for both positions.
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.
Implications for Pakistan
All eyes will be on The Hague, not only owing to the Jadhav case but also because of the tough election that is expected. Securing a position at the court is important for India to project its increasing influence in international forums. A seat at ICJ reflects a simultaneous confidence reposed by the Security Council and the General Assembly in a country’s credibility, something which India would be desirous of.
India would also eke out these advantages and in the process would have the upper hand vis-a-vis Pakistan on bilateral issues. Islamabad would have its work cut off at the ICJ and probably at other forums at the later stage. If Indian nominees are selected, it would give Delhi the satisfaction of getting the nod of apex bodies of the UN, to include General Assembly and the Security Council. Even otherwise stature is an important corollary of national power.