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India, UK in Tight Race Amidst Growing Pressure to Redress ICJ’s Regional Imbalance

Tough race ahead for Dalveer Bhandari as the United Kingdom, which stands to lose a privilege taken for granted for decades, pulls out all stops.

The Peace Palace, which houses The International Court of Justice, is seen in The Hague. Credit: Reuters

The Peace Palace, which houses The International Court of Justice, is seen in The Hague. Credit: Reuters

New Delhi: India’s candidate for the International Court of Justice (ICJ), Dalveer Bhandari, lost the ‘Asia-Pacific seat’ to Lebanon but continues to remain in the race against the British candidate in a contest that is being seen as a proxy for a fight between the Global South and the West.

The ICJ has 15 judges, each of whom serve a nine-year term, with five vacancies coming up for election every three years. This year, there were six contenders for the five seats up for grabs. When voting began in New York on Thursday, the sitting judges from France, Somalia, Brazil and the UK were expected to have an easy ride. It was for the fifth seat – the Asia-Pacific one – that observers forecast a tough contest between India, which renominated Bhandari, and Lebanon.

The results of the ICJ election on November 9, however, were anything but predictable.

Unlike other UN elections, electing judges to the UN’s principal judicial organ is a complicated affair. In simple terms, both the 193-member General Assembly (UNGA) and the 15-member Security Council (UNSC) go in for simultaneous, but independent voting. Countries can vote for as many of the candidates as they like but if more than five candidates receive the absolute majority of votes required, another round of voting must be held until only the exact number of candidates obtain a majority and the rest are eliminated.

Candidates who gets an absolute majority in both the UNGA (97 votes) and UNSC (8 votes) are declared elected. If there is a difference in names between the two chambers, more rounds of simultaneous voting are held.

After five rounds of voting in the UNGA, five out of the six candidates got past the majority mark. The only one who did not was the UK’s Christopher Greenwood, who had been elected by 157 UNGA votes in 2008. This time, he got only 96 votes in the fifth round – one less than the majority.

This was the first time ever that a candidate from one of the five permanent members had failed to win a majority in an election in the main body of the UN.

Bhandari was comfortably above the limit with 118 votes – but it was 17 votes less than his Asian rival, Lebanon’s Nawaf Salam. The Indian judge only got more votes than Salam in the first round – 149 to 148.

However, Bhandari’s majority in UNGA was not enough to get him elected on Friday as he was the only candidate among the six in the fray to get less than the majority in the Security Council in the fifth round. In earlier rounds, though, he had scraped past.

Having got the results of the UNSC voting, UNGA president, Slovakia’s Miroslav Lajčák declared that the four contenders who got a majority in both UN chambers have been elected. These were Ronny Abraham (France), Abdulqawi Ahmed Yusuf (Somalia), Antônio Augusto Cançado Trindade (Brazil) and the Lebanese challenger, Nawaf Salam.

The elections then entered  unfamiliar terrain.

As per the ICJ statute, there is no condition of quotas for geographical regions. However, it does say that ‘electors’ should keep in mind that candidates should represent the “main forms of civilisation and of the principal legal systems of the world”.

Due to disagreement on how to define this grandiose phrase, the 15 seats of the ICJ have ended up being allotted as per geographical regions – three each for Asia and Africa, two each for Eastern Europe and Latin America and five for the ‘Western Europe and Others group’ (WEOG). Though the ICJ statute has no such provision,  all P-5 countries have sent judges to the court since its establishment.

Despite the custom of regional allocation of seats, Greenwood and Bhandari remained the only names on the ballot paper for the sixth round of voting. In the past – especially in the ICJ elections of 2011 and 2014 – the remaining contenders for a single seat had been from the same geographical areas.

In the sixth round of balloting in the UNGA, Bhandari got 115 votes while Greenwood’s support fell to just 76, 20 short of a majority. The result was the opposite in the Security Council, where the UK got nine votes – a majority – but India only polled six votes.

One more round

With no consensus between the UNGA and UNSC, a third meeting will be held on the afternoon of November 13 for one or more rounds of voting. 

According to diplomatic observers, it was telling that the UNGA voted in favour of the Indian candidate rather than for the UK, a P-5 member, for a seat which is generally reserved for the Western Europe and Others group (WEOG).

The Indian side, therefore, believes that  it still has a chance, banking on the prevailing sentiment in the General Assembly

“Most countries in the GA feel there is no requirement of regional balance. Many also see the current vote as redressing an imbalance in the ICJ, which has five judges from the WEOG region which consists of just 29 countries whereas Asia and Africa, which have 54 countries each, get only three judges each.” said a senior Indian diplomat. The East Europe group of 23 countries has two judges.

Bhandari or Greenwood? Who will it be? Credit: Twitter

Bhandari or Greenwood? Who will it be? Credit: Twitter

France, Italy, Australia, the UK and United States are currently the five judges from the ‘Western’ group in the ICJ.

However, it will be an uphill task for India to get the requisite numbers in the UNSC. The perception being that the P-5 members will not allow the UK to lose its seat as this will be a “prestige issue” for the exclusive club.

According to a senior Indian official, the P-5 members would not like to see any hint of a challenge to their traditional privileges in the UN. Therefore, they would all “collectively” work for the UK both in the UNSC and UNGA to get the requisite numbers. “It will be harder for India to win two more votes in the Security Council than for the British to manage 20 in the General Assembly” said a former Indian diplomat.

Russia had already apparently indicated earlier that it was not going to back Bhandari, so it would be difficult to expect them to change tack now.

Balloting is secret but of the 15 UNSC members, Greenwood’s nine votes probably came from the P-5, Ukraine, Sweden, Italy, and either Japan or Ethiopia. Bhandari’s six votes would have come from Bolivia, Uruguay, Senegal, Egypt, Kazakhstan and either Japan or Ethiopia.

It would of course be a big loss of face for the UK to lose the vote for the ICJ, where it has been present since 1946. It would be a demonstration of how much global influence the post-Brexit Theresa May government has lost. Earlier this year, Britain suffered a major defeat in the UN when the General Assembly voted in favour of a Mauritius-backed resolution to refer Britain’s occupation of the Chagos Islands to the ICJ. According to the Guardian, Greenwood first courted controversy when, in the run-up to the invasion of Iraq in 2003, “he was instructed by the then attorney general, Lord Goldsmith, to examine the arguments over the legality of using force against Saddam Hussein and concluded that the use of force was justified.”

Last election foretelling 

In November 2014, four judges were elected on the first day, but the fifth seat (for Latin America and the Caribbean) saw a contest between Susana Ruiz Cerutti of Argentina and Patrick Lipton Robinson of Jamaica.

Throughout the 12 rounds of voting, Robinson got the absolute majority in the UNGA, while Cerutti won in the Security Council. When UNGA and UNSC could not come to a resolution after several rounds, Argentina withdrew its candidate.

According to a former MEA legal officer, while the numbers in the UNSC are important “the General Assembly vote would have a persuasive effect”.

There is confidence on the Indian side that Bhandari will get more votes in the UNGA now as there will be no division between the Asian, African, Latin American and Carribean countries.

“Going by the experience of 2014 between Argentina (which was a Security Council member that time) and Jamaica, if the UK gets the thumbs down twice or thrice in UNGA, they will withdraw,” he opined.

Similarly, in 2011, candidates from Sierra Leone and Uganda were locked in a fight for the fifth ICJ seat that was effectively reserved for Africa. Uganda’s Julia Sebutinde consistently got a majority in the UNGA over Sierra Leone’s Abdul Koroma, despite the UNSC going the other way. Ultimately,  the UNSC had to give in with Sebutinde getting a majority in Security Council too – when balloting resumed after a month-long gap.

Another relevant example for the present circumstances would be the 2008 ICJ election. Somalia’s Judge Yusuf was standing for election for the first time. His main rival for the remaining seat was Miriam Defensor-Santiago of the Philippines – which was then regarded as unusual as this mean two candidates from different regions were being pitted against each other.

In the later rounds of voting, Yusuf managed to overcome his initial setback and got more votes than the Filipino candidate in the General Assembly in multiple rounds. Since he already had a majority in the Security Council, Yusuf was declared elected.

Given these examples, India’s strategy would be to “consolidate” its UNGA position. While India would also try to win over at least one or two votes more in the UNSC, banking on the horse-shoe table may not seem realistic.

The change in tone of the elections from a straight India-Lebanon face-off to one about P-5 prerogatives has taken all parties by surprise. “This could benefit us to some extent in the UNGA but is unlikely to in the UNSC,” said an Indian official.

For now, both the UK and India appear to be in no mood to withdraw from the race. Therefore, observers expect a stalemate after multiple rounds voting on Monday, with the UNGA and UNSC batting for different candidates.

As per the ICJ statute, if a vacancy is not filled even at the third meeting, then a “joint conference” comprising of six countries – with the UNGA and UNSC choosing three each – could be formed to decide on the election. This route was used once in 1921 to elect judges to the Permanent Court of Justice after there was deadlock between the League of Nation’s Assembly and Council.

But this remains an optional method. After a similar stalemate in 1956, the election was postponed for two months and when voting resumed in January 1957, a consensus was reached.

If the joint conference also cannot come to an agreement, the next step as per Article 12(3) of the ICJ statute could be for members of the ICJ to vote and decide on the candidate. “In the event of an equality of votes among the judges, the eldest judge shall have a casting vote,” added the ICJ statute.

A campaign too late?

While Indian officials exuded confidence till last week that Bhandari had good chances of getting re-elected, there had been some nervousness about his candidature.

From the start, sources had expressed concern that India’s campaign had begun too late. India filed Bhandari’s nomination papers in late June – while other countries and candidates had begun their unofficial campaign years earlier.

Indian officials were clear that Bhandari’s rival to the seat – as per tradition – was the Lebanese jurist-turned-diplomat, who had some formidable advantages. Salam’s candidature was announced by Lebanon two years ago. He is also a UN insider, having represented Lebanon as permanent representative in New York for 10 years, with two years in Security Council.

Originally, New Delhi had even considered giving up the seat, but changed its mind when India took Pakistan to the ICJ in the Kulbhushan Jadhav matter in which a Pakistani military tribunal sentenced an Indian national to death for the crime of espionage.

The Modi government had been dithering till the last moment on endorsing Bhandari in his re-election bid. He had first been elected in 2012 after the Manmohan Singh government picked him. The Modi government even considered at least two Supreme Court justices – including chief justice J.S. Khehar – as a replacement for Bhandari.

Bhandari lost some support in the corridors of power he gave after an interview to the Indian Express to say that he was “delighted” at the “hugely satisfying interim pronouncement [in the Jadhav case] which is a great diplomatic victory for India”. This was seen in some quarters as unnecessary, as judges should not be making public comments on cases that they have adjudicated.

Further, New Delhi waited to bag the election to the Hamburg-based International Tribunal for the Law of the Sea (ITLOS), before announcing its candidate for the ICJ.

It was after India got its seat in ITLOS that the formal announcement of Bhandari’s candidature was made – only a couple of weeks before the deadline for nominations closed.

major diplomatic campaign was then mounted by India at the highest levels, especially to woo African nations and also some UNSC members. Indian officials were worried that the late campaign meant that the votes of UNSC members would already have been ‘tied’ up.  Those fears proved true on Thursday.