By Rajeesh Kumar*
The re-election of Justice Dalveer Bhandari to the International Court of Justice (ICJ) is historic in many ways. For India, as many observers have claimed, it was not only an impressive diplomatic success but a symbolic victory against its former colonial master, Britain, as well. The fiercely-fought election reflected the changing global order and major powers’ reluctance to acknowledge this emergent reality. This is the first time in the 71-year history of the ICJ that Britain, one of the five permanent members (P-5) of the United Nations Security Council (UNSC), has no judge on the bench. Bhandari’s election also endorsed the multilateral diplomacy based on realpolitik that India has been practicing in recent years. However, the whole process of the election kindled some grave concerns as well. Indian policymakers need to seriously think as to why Justice Bhandari could not secure an absolute majority in the Security Council during the first eleven rounds of voting. And, the en bloc opposition by the P-5 states raises doubts about their oft professed support for India’s UNSC bid as well.
ICJ and the Game of Numbers
The ICJ is the primary judicial organ of the United Nations. It has a total of 15 judges, five of whom are elected triennially for a nine-year term. To be elected, the candidate must receive an absolute majority in both the General Assembly and the Security Council. Voting takes place in both houses simultaneously but separately. The seats are distributed on the basis of geographical regions which correspond to the membership of the Security Council. As per the current configuration, three seats are allotted to Africa, three to Asia, two to Latin America and the Caribbean, five to Western Europe and two to Eastern Europe.
Abdulqawi Ahmed Yusuf (Somalia), Cancado Trindade (Brazil), Christopher Greenwood (UK), Dalveer Bhandari (India), Nawaf Salam (Lebanon), and Ronny Abraham (France) were the six candidates for the nine-year term beginning in February 2018. All except Nawaf Salam are currently serving judges and contested for re-election. Out of the six, four (Ronny Abraham, Cancado Trindade, Ahmed Yusuf, and Nawaf Salam) were elected in the fifth round of voting. This placed Bhandari and Greenwood in a fierce fight, which extended to six more rounds of voting and ended only with the withdrawal of the latter and election of the former as the fifth judge to the bench.
The re-election of Justice Bhandari was a great diplomatic victory for India, especially since the opponent was a P-5 nation. It highlighted the success of India’s multilateral diplomatic outreach. For the past few months, India put great efforts into campaigning for Bhandari and exercised its diplomatic muscle to ensure that its candidate gets re-elected. From lobbying at various capitals by the highest officials including the Prime Minister and External Affairs Minister to the creation of a separate cell at the Ministry of External Affairs (MEA) for coordinating the campaign, the government invested a great deal to ensure Bhandari’s victory. Sources with inputs from MEA officials note that India reached out to 176 nations and raised the issue at various global forums, including at the UN General Assembly Meeting, the G-20, and BRICS Summits. Prime Minister Modi personally made a few calls to world leaders while External Affairs Minister Sushma Swaraj made more than 60 calls to her counterparts for soliciting support.1 To ensure an absolute majority in the Security Council, Minister of State for External Affairs, M.J. Akbar, visited many capitals as the Special Envoy of the Prime Minister. During his visits to Egypt and Senegal, two non-permanent members of the Security Council, Akbar handed over Letters of Thanks from Modi for supporting Bhandari’s candidature.2
Bhandari’s win reiterated the huge backing that India enjoys in the General Assembly. He got 115 votes against 76 for Greenwood in the sixth round of voting held on November 9. In the next five rounds of voting on November 13, Bhandari received 121 votes. This voting record also highlighted the displeasure of the majority of the UN member states against the approach of the P-5, particularly on issues such as UN reforms. P-5 stable position explains their unwillingness to surrender any of the privileges they enjoy, including the tradition of holding the ICJ seats. European resentment against Britain after Brexit and India’s wide acceptability among the developing and underdeveloped countries also worked in the numbers game in the General Assembly.
Faults to Rectify
The election, however, compels us to rethink ties with some of the countries that India considers as close friends. For instance, in the Security Council, all the P-5 members and the non-permanent members such as Japan, Italy, Sweden, and Ukraine voted against the Indian candidate. Only Kazakhstan, Egypt, Ethiopia, Bolivia and Senegal voted in favour of India. Uruguay had voted in favour of India in the first rounds but abstained later.3 The voting pattern in the first eleven rounds in the Security Council unveiled how steadfastly the P-5 members rejected India’s candidate. Surprisingly, Japan, one of the G-4 countries and a front-runner for the Security Council seat with India, also voted against Bhandari.
Many in New Delhi hold the view that Japan is a good friend of India and an India-Japan-US alliance can balance rising China. In September 2017, External Affairs Minister Sushma Swaraj met Rex Tillerson, US Secretary of State and Japanese Minister of Foreign Affairs Taro Kono on the side-lines of the UN General Assembly in New York. It was a part of the India-Japan-US Ministerial level trilateral dialogue to strengthen ties between the three countries. Moreover, Prime Minister Narendra Modi also hosted Japanese Prime Minister Shinzo Abe in India recently. Nonetheless, India failed to translate the warmth of its relationship with Japan as a vote in favour of Bhandari in the Security Council. India was also unable to solicit support from its trusted friend Russia.
Further, though it is remarkable that India fought and won a seat that is allotted for ‘Western Europe and Other’ category, policymakers need to ponder over the failure to secure the seat reserved for Asia. India contested in the ‘Europe and Other ‘ category because the Asian position was filled by the Lebanese candidate during the very first round of the election. How did a smaller state like Lebanon manage to mobilize an absolute majority in the Security Council when an emerging power like India could not? This was partly because of India’s very late announcement of Bhandari’s candidacy, only four months back. In contrast, Lebanon had been campaigning for the last two years and managed to get the backing of both houses. This points to the possibility that some of the members of the Security Council including the P-5 had endorsed their support to the Lebanese candidate even before India announced its candidate. This could have happened in the case of the Security Council’s support for Justice Greenwood as well. A longer term strategy and preparation would help to minimize similar occurrences in future.
ICJ Win and Prospects for Security Council Seat
Many analysts have observed that Justice Bhandari’s victory is vital for two reasons. First, since India is campaigning for a permanent seat in the UN Security Council, the ICJ election is a litmus test indicating the quantum of support for New Delhi in the world body. Second is the assumption that Justice Bhandari’s win will be a big boost for India in dealing with the Kulbhushan Jadhav case. But both these assumptions are unfounded. Security Council reform and ICJ election are entirely different matters with unique methods and processes. One will not ensure the other. In contrast to the ICJ election process, in the case of Security Council reform, the P-5 enjoy veto power to block any decision that hurts their interests. The position of the P-5 during the voting and their responses after the election show that nothing has changed in this regard. For instance, while congratulating Justice Bhandari, a State Department Spokesperson echoed the US’ opposition to any alteration or expansion of the veto.4
As for the second argument, once elected, a member of the ICJ cannot act as a delegate of any government or state. Members of the court are independent judges obliged to act impartially and conscientiously and not as representatives of their parent country. It is true that the Kulbhushan Jadhav case had influenced India’s steadfast campaign and its commitment to remain in the contest even after eleven rounds of voting. Nonetheless, legally or morally, Justice Bhandari’s re-election will not bring any advantage to India and its position in this case. Even in the context of voting to settle the final verdict, it is not possible for a government or state to instruct a judge on how he/she should vote. Moreover, there have been many cases in which judges voted contrary to the submissions of their respective countries.5 The only privilege therefore is the prestige of having an Indian judge on the ICJ bench.
The final takeaway of the ICJ election is that it is a triumph of India’s multilateral diplomatic outreach. The pragmatic multi-lateral diplomacy worked well for India in the General Assembly. It is India’s massive support in the Assembly that eventually resulted in the withdrawal of British candidate. Therefore, to ensure such victories in future in global multilateral forums, India should continue to focus on its relationship with small and middle powers and not neglect them in the process of pursuing what could turn out to be unproductive relationships with the great powers, at least in multilateral forums.
Views expressed are of the author and do not necessarily reflect the views of the IDSA or of the Government of India.
About the author:
*Rajeesh Kumar is Associate Fellow at Institute for Defence Studies and Analyses, New Delhi.
This article was published by IDSA