India is getting ready to nominate a jurist for election as a judge of the International Court of Justice for the first time in two decades. A vacancy for Asia will arise in February next when Hisashi Owada from Japan retires. Elections are expected to be held at the United Nations in September or October.
The last Indian to serve on the ICJ was R.S. Pathak, a former Chief Justice of India, who was elected judge in 1989. He demitted office in 1991. Though judges normally serve for a term of nine years, Justice Pathak was elected in a “casual election” held following the death of M. Nagendra Singh, another Indian, in 1989 during his second term.
The ICJ is the principal judicial organ of the U.N. and consists of 15 judges. Though there is no formal provision, judges are elected on the basis of distribution among the principal regions of the world with three from Africa, two from Latin America, three from Asia, two from eastern Europe and five from western Europe and other states. Another convention is that a national of each of the five permanent members of the Security Council is always represented on the Bench.
Under Article 4 of the ICJ statute, the judges are “elected by the General Assembly and the Security Council from a list of persons nominated by the National Groups in the Permanent Court of Arbitration.” India's National Group is comprised of Justices Y.K. Sabharwal and M.H. Kania, both former CJIs, and B. Sen, a senior advocate. The task of formally nominating a candidate belongs to the National Group; in practice, national governments play a decisive role in the selection process.
According to Supreme Court lawyer Mohan Katarki, who is familiar with the working of the ICJ, “the principle behind the selection of a nominee is that the ICJ does not decide disputes based on hard and fast rules, but brings out a solution to the dispute to achieve peace.”
According to the ICJ statute, potential candidates must “possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognised competence in international law.” A jurisconsult is a person learned in law. The majority of the ICJ judges have come from the ranks of law professors and diplomats, though India has always nominated judges. Apart from Justices Pathak and Singh, the only Indian to serve on the world court, Sir Benegal Rau, was both a judge and diplomat.
In 1991, India decided not to renominate Justice Pathak, who nevertheless entered the fray with the backing of Ireland. When the Irish government came under attack in the Dail from MPs who blamed the judge for approving, as CJI, the “unjust” $470-million Bhopal gas disaster settlement with Union Carbide, Justice Pathak withdrew from the race. The Asian ‘slot' was then filled by C.G. Weeramantry from Sri Lanka.
On receipt of a request from the National Group for seeking nominees, the Ministry of External Affairs will prepare for the elections. As a first step, the government is likely to identify a person it wishes to get elected. The National Group of India as well as National Groups of other friendly countries should also accept the preferred candidate of India as one of their nominees. There is no age restriction.
Mr. Owada is 79. Another judge, Kenneth Keith of New Zealand, is 74.
