Supreme Court Of India Much More Open To Evoke International Law Than Apex Courts Of Other Countries : ICJ Judge Hilary Charlesworth

Justice Charlesworth lauded the idea of introspection as reminded to her by CJI DY Chandrachud in one of his previous speeches. According to her, the Apex Court practises the art of introspection which enables it to make independent and objective decisions, which are crucial for maintaining judicial independence.

“What is also impressive to me is the Supreme Court's courageous capacity of introspection, which, to quote the CJI's recent talk on the ceremonial sitting and I quote - introspection is the art of bringing the seemingly unattainable within the line of vision”

Drawing stark similarities on the roles and values that the International Court of Justice (ICJ) and the Supreme Court of India have, Justice Charlesworth opined that, “We both (ICJ and Supreme Court) face the task of navigating highly charged political environments as a legal institution. The international judiciary can draw inspiration from the Supreme Court of India's distinguished history of independence and innovation.” She further recognised how the Indian Constitution is one of the fewest to incorporate the zeal of fulfilling International commitments.

“ Over the years, the Supreme Court of India has manifested interest in the work of the International Court of Justice. Unlike many other constitutions, the Indian Constitution acknowledges the role of International Law in Article 51 part with the Directives of State of Policy”

Appreciating the endeavour of the Supreme Court of India in recognising the country's commitment towards the ratified International Treaties, Justice Charlesworth expressed, “ The Supreme Court of India has regularly referred to the International Law and on occasions the dissidents of the International Courts of Justice. Indeed I have been struck that it appears much more open to be evoking the International Laws, much more than the other Apex Courts such as my Own the High Court of Australia or the U.S. Supreme Court.”

On the Origins & Structure of the ICJ

Genesis of the making of the International Court of Justice lay in the establishment of the Permanent Court of Arbitration through the Hague Peace Conferences of 1897 and 1909. The idea of having an International Judicial Structure came in the early 20th century, with the League of Nations in 1919 envisioning the Permanent Court of International Justice. The Permanent Court was housed in the same building as the Court of Arbitration, which was the 'Peace Palace', Hague.

Established in 1922, the Permanent Court of International Justice, in its first year of working dealt with 3 requests for advisory opinion from the Council of the Nations. From 1923 to 1940, the Permanent Court of Justice delivered 29 judgements and 27 advisory opinions. Its last sitting was in October 1945, just before the outbreak of the Second World War.

Justice Charlesworth explained that the present International Court Justice, which is the successor of the erstwhile Permanent Court was established under the Charter of the United Nations (UN) on similar lines of the rules of procedure and the statute followed by the Permanent Court. However, a key difference between the predecessor of the ICJ and the present Court is that the ICJ was given a principal status akin to the UN Security Council (UNSC) and the UN General Assembly (UNGA)

As per the present procedure for appointment, the ICJ comprises a total of 15 judges from different nationalities who are elected simultaneously by the UNGA and UNSC. Traditionally, the 5 permanent members of the UNSC always have a judicial representation in the ICJ.

However, this tradition has been broken in the past 6 years when the United Kingdom lost its permanent seat in the ICJ, followed by Russia most recently.

ICJ Has A Poor Record In Relation To Gender Balance - Justice Charlesworth

Referring to the importance of having an increasing gender representation at a global level for the judiciary, Justice Charlesworth highlighted how the Statute of the ICJ doesnt mandate a gender ratio in terms of judicial representation as compared to the Rome Statute on International Criminal Court.

She expressed, “ I think overall the ICJ has a poor record of maintaining that balance. In over 8 decades, just 6 women have been elected to the Court, while 109 men have been elected at the same time….today we are still 4 women and 11 men”.

Article 36 (8) of the Rome Statute provides :

(a) The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for: (i) The representation of the principal legal systems of the world; (ii) Equitable geographical representation; and (iii) A fair representation of female and male judges

Was ICJ Ever Envisioned To Have 'Compulsory Jurisdiction'?

Elaborating on the Jurisdiction of the ICJ, Justice Charlesworth referred to the issue of ICJ not having a 'compulsory jurisdiction' in matters of legal importance at the international diaspora, despite the fact that all 193 members of the UNO by default become members of the ICJ.

Justice Charlesworth mentioned the deliberation by different nations on the aspect of 'compulsory jurisdiction' in the San Fransisco Conference of 1945.

“ The position that whether the Court should have compulsory jurisdiction was championed by smaller states such as New Zealand and Australia. But ultimately the view of the Soviet Union, United States and United Kingdom prevailed and that was that the jurisdiction should be voluntary and that is the situation today.”

The International Justice enunciated the three ways, the jurisdiction of the ICJ could be evoked: (1) By mutual consent of the two states involved, for eg. the ongoing territorial dispute between the coastal countries of Guatemala and Balise which was submitted mutually; (2) Treaties entered between the parties which grant the ICJ jurisdiction over the legal dispute. The recent evocation of Article 19 of the Genocide Convention by South Africa against the State of Isreal is a classic example of this point. Other such conventions incorporating a jurisdictional clause include the CEDAW, the Convention on Elimination of Racial Discrimination and the Convention Against Torture; (3) Standing declaration made by Nation States accepting the compulsory jurisdiction of the ICJ. So far only 1/3rd of the UN members have made such declarations including India (with certain exceptions), Australia, Canada and the United Kingdom

Implementation of Judicial Decisions Dependent Upon The UNSC

Justice Charlesworth explained that, unlike the domestic courts, the ICJ is devoid of having any powers on enforcement of its judgements including those considered binding on the parties involved.

However, Article 94 of the UN Charter provides that all member states undertake to abide by the decisions of the ICJ and therefore it is at their discretion to ensure that they fulfil this undertaking. Additionally, within the said provision, nation-states do have the choice of making a request to the UNSC in “making recommendations or deciding upon the measures to give effect to the judgement.”

Expressing concerns on the UNSC's inefficiency in exercising its powers critical for enforcement of ICJ decision, Justice Charlesworth opined, “ However what is striking now is that the UNSC has now in 8 decades has never exercised those powers that it has. The use of the Veto by one of the 5 permanent members of the UNSC can really effectively stymie that route of enforcement”

The Justice supplemented this by illustrating how the USA once used its Veto powers to block the enforcement of the ICJ decision against it in Nicaragua v. United States of America, 1986 (Military and Paramilitary Activities in and against Nicaragua).

How ICJ Struggled With Loss Of Confidence And Independence Of Judges

Justice Charlesworth underlined the many struggles that ICJ faced in gaining and maintaining the confidence of the Nation States when faced with issues that blended global politics and human rights. Recalling the instance where the ICJ gave a split verdict (8:8) against Ethiopia and Liberia in The South West Africa Cases of 1960, the global south seemed speculative of the credibility of the International adjudication forum.

“Many of the new members of the UN from the developing world were dismayed by this decision and lost trust in the court as a useful forum for dispute resolution. That distrust was deep and it lingered for 20 years until the Court's 1986 decision in Nicaragua against the United States, which was decided under the Presidency of Dr. Nagendra Singh.”

However, it was only after the firm decision of the ICJ to hold the USA accountable against Nicaragua for violating its obligations arising from the Treaty of Friendship, Commerce and Navigation of 1956, and ordering reparations for the injuries caused, that the ICJ was able to gain back strong ground. Justice Nagendra Singh, who presided over the Nicaragua dispute was of the opinion that “The Court's role is to decide legal questions even if they form part of a broader political dispute”.

“Today, despite that low point in the history of the Court in 20 years where there was barely a case in the Court's docket, and some judges found it as becoming elected to the court and simply never hearing a case in the court because there was such a loss of faith in Court, but (today) we are at the busiest points ever.”

A popular criticism of the ICJ, according to Justice Charlesworth was that the Court often acted as a “Political Organ who's members effectively represented the initerests of their nationality”.

Propelling the lecture towards its last leg, Justice Charleworth emphasized often scholars note that such a criticism on the nationalities of judges influencing their decisions effects the independence and impartiality in decision making.

She expresses, “The question of judicial independence is one that confronts all courts and is vital for their legitimacy. It is of acute importance in a global era of democratic decay and growing autocracy”.

On impartiality and independence, Justice Charlesworth gave the example of Justice BN Rau, who in 1951 recused himself of hearing the legal case between UK and Iran as he previously dealt with the same in the capacity of being the Indian ambassador in UNSC before his election to the ICJ.

The Justice further analysed how impartiality and independence of the judiciary were distinct from each other.

“Independence is aimed at eliminating not any preconceptions that the judges may have, which I take to be impartiality but rather any non-legal considerations that might affect the judge's reasoning and clouded judgements. Independence is the freedom from source of extra-legal pressure, a trait to be ensured not only by each judge individually but also by a judicial institution as a collective.”

Underlining how judicial independence in the international sphere is important when dealing with legal issues having political consequences, Justice Charlesworth stated the challenges or factors effecting the independence of the judges across the globe including those at the international helm, as per the UN Special Rapporteur on 'The Independence of Judges and Lawyers' . These included - (1) disinformation spread online; (2) online harassment and threats including the misuse of Artificial Intelligence; (3) lack of diversity in judicial representation from the lens of gender, race, ethinicity etc.

The Chief Justice of India, DY Chandrachud during his welcome address for Justcie Hilary Charlesworth, also impressed upon the similarities in the responsibilities of the ICJ and the Supreme Court of India, and how international law and diaspora live in constant symbiosis with the domestic legal affairs .

The CJI expressed how over the decades, with the change in the political dynamics and diplomatic ties at the global level, the adjudication realm of the International Court of Justice has also expanded to just limit itself to deciding cross-border disputes or questions of conventions but also issues of human rights violation and the Genocide Conventions and Conventions on Torture.

“The change in global politics has been crucial in shaping the transformation of the ICJ as well. It reflects the different the deep interplay between politics, power and the law.”

CJI in his address stressed how the main responsibility bestowed upon the Supreme Court of Independent India was to help the nation come out of its colonial trauma and embark on a journey for a better tomorrow as envisioned in the farsighted contours of our Constitution.

“Our founding moment cannot be viewed divorced from the political realities of our time”

CJI futher added how in her book “ Boundaries of the Law”, Justice Charlesworth the situation of women during global wars and even in the aftermath of the New World Regime remains prone to discrimination, abuse and systemic oppression. Charlesworth quotes Professor Sandra Freidman, a distinguished expert in International Law to explain the fourfold concept of feminism in the context of Constitutional Law and International Jurisprudence : (1) The redress of the Disadvantaged which may require redistributive measures; (2) Recognition of the prejudice, stereotyping and the violence that is caused by the society; (3) Ensuring the participation of people in the decisions that affect them; (4) The achievement of structural and transformational change which is the fourth dimension of equality.

Correlating the said 4 principles to the Indian context, CJI expressed how the idea of attaining equality is a constant tussle for the Indian Judiciary and the Judges especially when dealing with issues of caste discrimination and social injustice.

“ I mention these 4 because we as judges and lawyers are constantly grappling with these ideas not only in the context of feminist jurisprudence but in terms of justice to our own marginalised - the Scheduled Castes, Scheduled Tribes, the Other Backward Classes etc.”