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MUMBAI: Amid all the drama around the Kulbhushan Jadhav hearings at the International Court of Justice (ICJ) at The Hague, one image stood out as particularly odd: Khawar Qureshi, the lawyer for Pakistan arguing his case with a wig on his head.
It was like an image from a period film, and made one wonder if Pakistan still required lawyers to wear wigs. Or, was it a requirement of the ICJ, and if so, why did Harish Salve turn up simply in his regular gown and white legal bands?
The answer to this lies in the fact that Qureshi is based in London where wigs are still worn. (He is actually a Queen’s Counsel, a senior lawyer, which entitles him to an even bigger wig for ceremonial occasions). The protocol at the ICJ is that lawyers address the court in whatever legal costume they usually wear.
It was a small indication of the oddities of the ICJ. It might seem to have the standard solemnities of superior courts – the ranks of judges in dark robes (with a jabot, or lacy collar being the one special flourish), the court officials taking notes and lawyers facing them for oral arguments. But these lawyers aren’t just in different robes. There is no particular requirement for them to be lawyers at all.
This detail is revealed in a fascinating, often slyly funny, guide to the ICJ written by Mohammed Bedjaoui, an Algerian diplomat and jurist who served two nine-year terms as an ICJ judge, including three years as its president. Bedjaoui points out that the court has no Bar Association, which in most countries serves to accredit counsel. In its absence, “everything is up to the litigant states”.
Of course, only states, or United Nations institutions, can approach the ICJ, which either send a senior lawyer of their own, like Salve, or hire a top counsel, like Qureshi. But as Bedjaoui admits, this tends to focus on just a few counsel from the French or English speaking legal worlds, since these are the two official court languages. Young legal talent from elsewhere rarely get a chance.
Everything in the ICJ must be translated into both languages with the result, Bedjaoui writes, that “it is the translators more than anyone else who have all the details of the case at their fingertips”. It results in truly fearsome levels of filing – in one case, he estimates, “the pleadings weighed 25 kilograms. They amounted to 60,776 pages in all, including the annexures”.
Death penalty cases like Jadhav’s offer a rare flash of drama. The bulk of the ICJ’s work is territorial disputes or water rights for which “the Court usually finds it necessary to hire a cartographer or hydrographer”. Bedjaoui notes that maps and technical documents add to the complexities of filing, and can be in many different languages, including really old treaties with antiquated text.
All this has to be translated into both languages which slows down things but that, Bedjaoui notes, is often the point: “One of the main attractions of judicial settlement is its stately pace, and the possibility it affords to put off the solution of a thorny problem for as long as desired.”
He laments this gives the Court a reputation for being slow, when slowness is what the states may want: domestic demands for justice in complex issues can usefully be kicked down the line by blaming it on the Court.
This seems to be common with transnational jurisprudence. Within national legal systems, where there is usually at least the clarity of a common code and an authority to enforce it, the way to deciding, and implementing a decision might seem clear. Between countries there is no such clarity and it is usual for all such cases to begin with lengthy disputes about jurisdiction and questions about accountability. One of the early examples of a transnational court was the Reichskammergericht of the Holy Roman Empire, which was in existence from 1495 to 1806, moving between different cities in Germany. Some of the cases it dealt with, between the different states within the Empire, went on for centuries and were still undecided when it was wound up. And yet the idea of such a court remained potent because the alternative way to solve inter-state disputes was, quite simply, war.
This was why, as the 19th century progressed and the horror of warfare was made more potent by industrial progress, and rapid transport became evident, the calls for a World Court to stop wars increased. One of the first concrete steps to create this started exactly 118 years back when the first Hague Convention opened on May 18, 1899, attempting to frame rules to regulate international disputes.
One legacy of that Convention is still with us – the Permanent Court of Arbitration (PCA). This deals more with arbitration than justice, but it established mechanisms that the ICJ uses, like the ‘compromis’, the agreement under which parties agree to approach the Court. VD Savarkar was the subject of a famous PCA case over whether France or the UK had jurisdiction when he was arrested at Marseilles after temporarily escaping from imprisonment on a British ship.
The building which housed the PCA also hosts the ICJ now. This is the Peace Palace, built with a donation from steel magnate Andrew Carnegie. He was famous for setting up libraries around the world, and at first only wanted to create an international law library. But he was persuaded to part with $1.5 million which was enough for a library, the PCA and the Permanent Court for International Justice (PCIJ), established by the League of Nations after World War I.
The PCIJ made major steps towards establishing the idea of transnational law (one minor case referred to it in 1936 concerned a suburb of Masulipatnam called Frenchpet, which was claimed to be under French rule). But like the League of Nations it could do little to stop the onset of World War II. In 1945, as plans to set up a new, more empowered United Nations were formed, it was agreed to dissolve the PCIJ and restart it as the ICJ.
India, which was moving towards Independence, readily backed the new institution. In November 1947, Jawaharlal Nehru moved a resolution in the Constituent Assembly recognising the jurisdiction of the ICJ in all matters dealing with international law. He might perhaps have been less enthusiastic if he had realised how soon the Court was to be invoked against India.
The problem started with the French and Portuguese enclaves within India. Their future was unclear but, as far as their owners were concerned, international law had to be applied to dealing with India. In 1949, the Indian government was startled to learn that, as requested by France, the ICJ had appointed neutral observers for the referendum being planned in their colonies to decide on whether to accede to India. The implication, fairly obviously, was that India would seek to influence the vote.
Nehru’s government was unhappy at what it saw as unasked for interference by the ICJ in Indian affairs. But it was hard to refuse such professedly neutral observers and, in the event, they managed to assure the government that they had no intention to interfere. The votes proceeded in India’s favour and the French enclaves were absorbed.
The Portuguese were a far bigger problem. Goa was a substantial domain and the Portuguese had no intention of leaving. But the much smaller enclave of Dadra and Nagar Haveli was harder to control and in July 1954 activists staged a rebellion, demanding accession to India. The Indian authorities looked on benignly without interfering. But when Goa angrily demanded the right for their troops to cross over Indian territory to suppress the revolt, India retorted that foreign troops could not set foot in India.
This was clearly a case for the ICJ, down to involving an old agreement, the Treaty of Poona, signed in 1779 between the Portuguese and the Peshwas. In April 1960, the Court delivered a carefully calibrated judgement, agreeing that India had to allow regular Portuguese visitors access to Dadra and Nagar Haveli, but as a sovereign country it could not be expected to allow foreign troops to pass through.
This neatly allowed both sides to claim a victory, the ideal outcome for the ICJ. But Portugal resentfully had to abandon Dadra and Nagar Haveli, while India became even more determined to take over Goa someday soon. And it may have made India wary of the ICJ, knowing how many other issues along its borders could suddenly be used to haul it to Court.
One particular person may have increased India’s doubts about the ICJ. In 1946, Sir Muhammed Zafrullah Khan, one of the judges on the Federal Court of India, the precursor to the Supreme Court, was nominated to be one of ICJ’s first judges. This initially fell through, but in 1954, he was elected and remained there till 1973, becoming first its vice-president and then, its president from 1970 to 1973.
By then Khan had moved to Pakistan, becoming its first Foreign Minister, before moving to ICJ. But even further back, it was alleged that Khan had written the first memorandum on dividing India which would become the basis for Partition. As might be expected, he often raised the issue of Kashmir in the international forum and India must have feared he could use the ICJ to further the cause of Pakistan. (Khan’s devotion to Pakistan was not quite rewarded. He was an Ahmadiyya and his role in his country's history is being minimised just as his people are being persecuted).
This is exactly the question that has haunted the ICJ – can judges put aside national allegiances in the interest of transnational justice? The ICJ has claimed it does not consider nationality, only merit, in getting its judges, but the practical realities of voting for judges means that some scrutiny, and regional balancing has always taken place.
Judges are expected to recuse themselves if they are too closely linked to an issue, and if a country does not have a judge of its own on the ICJ when a matter concerning it comes up, it can nominate a judge to temporarily serve on the Bench. Which simply makes the ICJ seem stranger – imagine defendants being able to nominate a judge to help decide their case!
In time perhaps India’s suspicion of the ICJ has faded. It must help that highly respected Indian jurists have been judges: BN Rau, Nagendra Singh, RS Pathak and, currently serving, Dalveer Bhandari. Going to the ICJ with Jadhav’s case was a gamble: the ICJ’s history in preventing executions is not great – and practically speaking it will not be able to stop Pakistan if it decides to go ahead.
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