With the ICJ to adjudicate on the Kulbhushan Jadhav case over the next few years, having an Indian judge on the bench is a national priority.
New Delhi: It is all-hands-on-deck, as the Indian government makes an all-out effort to get Dalveer Bhandari re-elected to the International Court of Justice (ICJ), as a last minute nomination and a complicated electoral procedure keeps New Delhi on tenterhooks about his prospects.
India officially began the process of re-nominating Bhandari in late June, which kick-started the lobbying process to get him on back on the bench in The Hague’s Peace Palace.
With the ICJ to adjudicate the case of Kulbhushan Jadhav over the next few years, the perception in New Delhi is that having an Indian judge on the bench is a national priority. Pakistan, the other party in the “Jadhav Case”, also has the right to nominate an ad-hoc judge to the bench since the ICJ has a serving Indian judge, but not one with Pakistani nationality.
The Wire has learnt that the lobbying has already begun at the highest level. During the G-20 meeting in Hamburg in the first week of July, Prime Minister Narendra Modi solicited support for Bhandari in all his diplomatic interactions with foreign leaders.
His next important foreign visits are to the BRICS summit in Xiamen, China, and then a bilateral trip to Myanmar, where he is likely to raise the issue again.
Modi is apparently skipping the United Nations General Assembly (UNGA) session in September for the second consecutive year. External affairs minister Sushma Swaraj will be leading the Indian delegation at the UNGA’s high-level segment from September 19-25. Swaraj’s top priority, it is understood, will be to directly speak to her peers at the gathering in New York and get as many committed votes for Bhandari as possible.
There is a “very high level” of effort being put in by the Indian government to return Bhandari to the ICJ. Instructions have gone out to ensure that Bhandari’s candidature finds mentions at India’s diplomatic interactions, whether they involve just diplomats or the country’s top leaders.
However, rather than in New York, India’s campaign will be more effective when there is a direct outreach to the capitals.
Accordingly, plans are being drawn up to draft personal letters from the prime minister to his counterparts. There are also proposals to send special envoys to the critical countries to garner support.
All this extra effort is being made as the Indian government considers having an Indian judge in the ICJ as a political priority. This perception of the ICJ’s importance is mainly centred over the judicial body arbitrating India’s case against Pakistan.
After a Pakistani military court sentenced Jadhav to death on terror charges in April, India dragged Pakistan to the ICJ for violating the international law by denying consular access to Jadhav. Accepting India’s plea for provisional measures, the ICJ effectively stayed Jadhav’s execution until a final judgement order is passed.
India has to submit its written pleadings by September 13, while Pakistan will get another three months to file a rebuttal. That will not be the end of the process as the court will decide if more rounds of written submissions or oral hearings are required. The proceedings could stretch to two to three years – the average time for most contentious cases in the ICJ.
Bhandari’s term officially ends only in February 2018. Therefore, Pakistan is already pushing ahead with plans to seek the appointment of an ad-hoc judge of its choice under Article 31 of the ICJ statute.
The Pakistani newspaper Express Tribune reported on August 15 that the attorney general of Pakistan has recommended three names to the prime minister’s office for the post of an ad-hoc judge, including a former chief justice and a senior lawyer who is an expert in international arbitration. The third name is that of former Jordan Prime Minister Awn Shawkat Al-Khasawneh, whose resignation mid-way through his term as a judge in the ICJ in 2009 led to the vacancy that was filled by Bhandari.
The coming together of the entire diplomatic machinery behind Bhandari is especially remarkable, as even till the early months of 2017, the South Block was more inclined to demit the Indian seat in the current election cycle. It was only after India approached the ICJ against Pakistan that the government started leaning towards retaining Bhandari. Even so, a decision to go ahead was only taken after India’s candidate for the International Tribunal for the Law of the Sea won handsomely.
Under Article 9 of the ICJ statute, the 15 seats are to be represented by the “main forms of civilisation and of the principal legal systems of the world”. In the absence of any consensus of how to define them, the 15 seats became allotted by default as per the geographical categories of the United Nations Security Council (UNSC).
All the countries whose judges’ terms were ending, had already decided to re-nominate them much earlier. These are Ronny Abraham (France), Antônio Augusto Cançado Trindade (Brazilian), Christopher Greenwood (UK), Abdulqawi Ahmed Yusuf (Somalia).
However, India decided on Bhandari’s re-nomination only a few weeks before the July 3 deadline. This despite that India’s seat for Asia Pacific group already had a contender in the form of Lebanon’s permanent representative, Nawaf Salam. The only other non-sitting candidate in the fray is from Zambia.
There is a growing perception that, perhaps, India took the wrong call in following the unwritten norm of not announcing the candidacy of the nomination of a sitting ICJ judge well in advance. While the other sitting judges also did not announce their nominations officially, there was enough gossip about their candidacy for months, and even years, ahead.
Lebanon had announced the nomination of Salam, a consummate UN insider, two years ago. Salam has been Lebanon’s envoy to the UN for ten years, including two years in the UNSC in 2010 and 2011.
The reason for the uneasiness in the delay in Bhandari’s nomination may be due to the unique electoral process for the ICJ.
Both the 193-member UNGA and the 15-member UNSC have to vote independently to elect the members of the ICJ. A candidate who obtains a simple majority in both the UN bodies is deemed as elected. There can be several rounds of voting to get a common candidate to fill in all the five vacant seats. In the 2014 ICJ elections, voting took place over several days to fill in the fifth seat, before one candidate withdrew.
New Delhi’s main concern is the UNSC. According to officials, the ten non-permanent members are also “very serious” campaigners of the UN elections and have naturally lined up support three to four years ago.
Therefore, India’s last-minute campaign puts Bhandari at a disadvantage, as most of the countries have already committed their support.
The traditional way to lure support is with quid-pro-quo arrangement in other elections in various world bodies. That’s why, Egypt, currently a non-permanent UNSC member announced that it will support Bhandari. In return, India has agreed to back the Egyptian candidate for the post of director general of UNESCO.
Most of the European and Latin Americans nations usually don’t reveal their hand till just before the election, according to UN observers. There is also no clear sign of backing from the permanent members, with only France revealing its hand as it has nominated Lebanon’s Nawaf Salam. Bhandari’s nomination is officially backed by India, along with Australia, Bangladesh, Colombia and Israel.
The ballot paper for the ICJ election is different from other UN elections. For example, for election in the UNSC, if a country is listed for a seat which is allotted to another geographical area, that vote is disqualified. But in the ICJ election, there are no such restrictions to disqualify votes.
While India seems to be doing “okay”, the numbers are still not enough for Bhandari’s win. This is despite the fact that Bhandari has advantages over the senior Lebanese diplomat as he has served as a sitting member of the ICJ and was also a former Supreme court judge.